Alabama is only the second state, since Rhode Island 46 years before, to outlaw virtually all abortion with stiff criminal penalties. It “makes providing an abortion a Class A felony, carrying with it a prison sentence of up to 99 years.” Alabama’s HB314, unlike any other past or imminent review of any other state pro-life law since Rhode Island, is challenging federal courts to address the evidence that unborn babies of humans are humans (“persons”).
This article is about steps that, if taken, can get HB314 where it can end legal abortion. This article is about what we can do to encourage those steps to be taken. This article is also about the threats to HB314 if nothing changes.
The lead sponsor of Alabama’s bill, Representative Terri Collins, and the author of the “Foundation for Moral Law” amicus brief, Matthew Clark, were shown this article a week before publication but chose not to interact. See video.
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Strong evidence of Life. Like Rhode Island, Alabama added a “Legislative Findings” making a case for the legal protection of the unborn, which courts reviewing the law will need to address:
…medical science has increasingly recognized the humanity of the unborn child. (f) Recent medical advances prove a baby’s heart starts to beat at around six weeks. At about eight weeks, the heartbeat can be heard through an ultrasound examination. A fetal Doppler can detect a fetal heartbeat as early as 10 weeks. (g) Ultrasound imaging shows the developing child in utero. (h) As early as six weeks after fertilization, fetal photography shows the clear development of a human being. The Alabama Department of Public Health publication “Did You Know . . .” demonstrates through actual pictures at two-week intervals throughout the entire pregnancy the clear images of a developing human being.
But that’s irrelevant. Sadly, that isn’t enough to move the judges on the 11th Circuit federal court, where HB314 is now headed. At least it wasn’t enough last year, when the 11th Circuit wrote a stronger acknowledgment of the humanity of “a living unborn child”, with supporting medical evidence, and yet treated all that evidence as irrelevant – certainly no reason to stop murdering children by as brutal a “procedure” as has ever occurred to an evil imagination! That court said:
…dismemberment abortion [which we support]…involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child. This is usually done during the 15 to 18 week stage of development, at which time the unborn child’s heart is already beating. …The parties agree that…an unborn child is alive while its heart is beating, which usually begins around six weeks. See How Your Fetus Grows During Pregnancy, Am. Coll. of Obstetricians & Gynecologists (April 2018), http://www.acog.org/patients/faqs/ how-your-fetus-grows-during pregnancy. [West Alabama Women’s Center v. Miller, 17-15208, 8/22/2018]
The fact, agreed to by everyone, that abortion kills living children with beating hearts, is irrelevant in deciding whether to let mothers kill them?! By what logic?
The 11th Circuit didn’t mention any logic. They only said Roe made them do it. “In our judicial system, there is only one Supreme Court, and we are not it. As one of the ‘inferior Courts,’ we follow its decisions.”
But we can infer a rationale from what the federal court told Rhode Island in 1973, a rationale which was repeated in thousands of later abortion prevention trials (where prolifers prevented abortions, mostly by blocking doors) even though it is the opposite of what Roe v. Wade said.
In 1973, Rhode Island was told that babies are not people as a matter of law, according to Roe, so it is irrelevant whether babies are in fact, people. Is that what courts will tell Alabama?
Roe didn’t say that. It is critical that prolifers understand that is the opposite of what Roe v. Wade said. Only when a significant portion of the population can tell when judges violate not only Scripture, morality, and common sense, but their own precedents, can judges be held accountable. The other reason pro-life legal education is critical is that only to the extent of pro-life consensus about the most effective legal strategies can pro-life lawmakers have the support they need for the most effective pro-life bills.
Before I show that Roe didn’t actually rule that babies are not “persons” or treat unborn personhood as “a matter of law”, or treat the factual nature of the unborn as irrelevant, but the opposite: that its legalization of abortion must be overturned when its factual premise is proved wrong, I need to explain why it is critical that Alabama’s law be next in line before the Supreme Court, and not displaced by a review of one of the other state pro-life laws.
The Right Kind of Case: a challenge to any “right” to abortion
Which issue should prolifers place before courts: “All unborn babies are humans (persons)”? That was the issue brought by Rhode Island in 1973 and by Alabama May 16. Or…  “Making abortionists murder humanely, or clean their murder rooms, or showgirls who they are about to murder, or hurry up and murder before they can hear a heartbeat – none of those restrictions have the effect of substantially reducing abortions, and that certainly isn’t our purpose”? That’s the issue placed before courts by every state abortion restriction in between.
What a difference, legally as well as Biblically, between Alabama’s 2016 pro-life law, which said that before a baby is torn limb from limb, he must be killed in a way that causes less pain, and this year’s law! The premise of Alabama’s dismemberment law was that murder ought to be humane. The premise of the current Alabama law is that murder ought to be outlawed.
Which kind of case appears most likely to get legal abortion repealed?
The second kind, according to Pat Robertson. Robertson wowed several liberal news sites with his statement about Alabama’s HB314 that “I don’t think this particular bill is the case I would want to bring into the Supreme Court. You want to get something that you know is going to win. I don’t think that will.” (Complete story: from 9:10 to 11:00.)
(The liberal spin, quoting just the first sentence, was “this is so extreme that even Pat Robertson doesn’t want abortion restricted that much!”)
In other words, don’t even try to win the war. You can’t do it. The enemy is going to invade and torture you all to death. Just try to win a crate of cyanide pills so your church can die quickly.
Prolifers need to understand why a complete challenge to abortion’s legality, like Alabama’s, is the only kind of case that can cause courts to reconsider abortion’s legality. None of the challenges from other states even raise the issue, and courts don’t normally address issues not raised.
The 11th Circuit told Alabama, last year, “The Supreme Court has interpreted the Fourteenth Amendment to bestow on women a fundamental constitutional right of access to abortions.” The Court explained how that terminology from Roe morphed into: “whether ‘the purpose or effect of the (law at issue) is to place a substantial obstacle [or, “undue burden”] in the path of a woman seeking an abortion before the fetus attains viability.’”
The Court said that is “The question in all abortion cases”.
Well, maybe that was true, last year.
Obviously, there is no question about that with Alabama’s abortion ban this year! Abortion can face no more “substantial obstacle” than a virtually absolute ban!
But it was true last year, of all the reviews of state laws between Rhode Island and Alabama’s latest. All those state challenges to legal abortion accepted – did not challenge – the Supreme Court’s absurd premise that abortion is a “fundamental right”, and then struggled to argue that their restrictions were not an “undue burden” on baby killing.
Before courts talked about an “undue burden”, they stated almost the same rule a little differently: any restriction of a “fundamental right” must be “the least restrictive means of achieving a compelling government interest.”
That is, some other “compelling government interest” than saving human lives! Something like making abortionists murder humanely, or clean their murder rooms, or showgirls who they are about to murder, or hurry up and murder before they can hear a heartbeat.
Here is how the 11th Circuit explained that “saving human lives” is not an acceptable “compelling government interest:
“B. The State’s Interest. One requirement that Casey and its progeny establish, which is carried in the “purpose or effect” language of the opinions, is that a state regulation that applies to pre-viability stage abortions must have a legitimate or valid purpose other than simply reducing the number of abortions.” P. 11-12
After May 16, the 11th Circuit can no longer say “The question in all abortion cases is whether ‘the purpose or effect of the (law at issue) is to place a substantial obstacle” before an abortion. There is no question about that when a law bans virtually all abortions! And when the law, moreover, plainly states that its purpose is to outlaw virtually all abortions! And plainly articulates a new, very different “question” (issue) for the court: unborn babies of humans are in fact, humans. (Persons.) Killing them is in fact murder.
That is the legal step I have prayed for. That is what I wrote my book to encourage. (“How States can Outlaw Abortion in a Way that Survives Courts / Court recognized fact finders have unanimously established what Roe said would end legal abortion.” (Free PDF)
Before courts can acknowledge that abortion is the murder of living human beings whose right to life is “guaranteed” by the 14th Amendment, they have to have a case before them where that is the issue. That issue is not present in a case that leaves alone the assumption that murdering your baby is a fundamental right.
History. Although only Rhode Island and Alabama have, to date, been the only states to place that issue before courts, with criminal penalties for abortion, that issue was forefront in thousands of “abortion prevention” cases – where prolifers prevented abortion by “trespassing” – blocking “murder mill” doors – and arguing in court that it was “necessary” to save human lives. Whether those lives saved were “humans/persons” was the only contested issue in those cases – the actions of the life savers was seldom disputed.
Yet those thousands of judges dodged the core issue by following the lead of the judge who had shot down Rhode Island: they said that whether human lives were in fact saved was irrelevant because Roe had ruled as a matter of law that those babies are not “persons”. Therefore, juries should not even be told about the only contested issue of the case, because juries are “finders of facts”, and “when [constitutionally protected] life begins” is a “question of law”.
(The devastating impact that had on the constitutional right to Trial By Jury is explained in an entertaining “Pee Wee TV” video series, featuring talented children, linked at http://saltshaker.us/Scott-Roeder-Resources.htm)
That is the opposite of what Roe or any later Supreme Court ruling said; Roe treated the issue as a “fact question” about which “the judiciary…is not in a position to speculate”, but should fact finders “establish” that babies are “recognizably human”, then “of course” abortion must be outlawed by all states.
But judges got away with that reasoning because everyone wanted them to. Prolifers were a minority of the Republican party, and those prolifers who supported “breaking the law” to save lives were a tiny minority of prolifers. Very few wanted legal abortions to end through one of those cases. Most were comfortable looking the other way when court reasoning made no sense.
That is why I have concluded it is necessary for a state to bring a “when [constitutionally protected] life begins” case to court. A case brought by lawmakers instead of “lawbreakers” is far more likely to have the support of most prolifers. And judges need public pressure on them or they will continue dodging Life. And the only way to mount public pressure on them is for a majority of prolifers to understand, and support, effective legal arguments that pro-life lawyers place before courts, so they can recognize when judges dodge the evidence and arguments and rule unconstitutionally.
Yet it is those thousands of embarrassing cases which have provided the court records documenting the consensus of juries and expert witnesses [court-recognized fact finders] that “life begins” at fertilization, which are available for Alabama’s defense now, but were not available to Rhode Island then.
If that court-recognized evidence is added to the defense of Alabama’s law in court, I believe it will help save the law. But I am concerned it will not be, because it was not mentioned in the Legislative Findings, and because I have not seen it raised by any other prolife lawyer in any prolife case brought by a state law. That is why I am concerned that Alabama’s law is as vulnerable without that evidence as Alabama Governor Kay Ivey implied it was when she signed the bill:
Ivey, as well as the legislators who passed the bill, knew that Alabama’s abortion ban would never take effect, at least until the Supreme Court really does overturn Roe. “As citizens of this great country, we must always respect the authority of the US Supreme Court even when we disagree with their decisions,” Ivey conceded in her statement at the bill’s signing, admitting that the law was unenforceable because of Roe. And the Supreme Court isn’t likely to hear a case over the Alabama bill, or similarly extreme anti-abortion measures passed recently in other states. – MotherJones.com
Yet with this evidence, and with a few important legal arguments outlined here and in my book, I believe it is impossible for any judge to squarely address the evidence and keep abortion legal. And with the right public preparation, I believe it is impossible for any judge to get away with dodging the evidence. I do not believe Alabama lawmakers need to surrender all the hard work they have done to the vagaries of a judicial whim. I believe they can discuss these opportunities with the Alabama Attorney General who will be defending this law, and arrive at a defense which will end 46 years of legal abortion.
I am concerned that Alabama’s case must not wait until it reaches the Supreme Court before it wins. It has to win before the Federal District Court. That means these weaknesses in the apparent defense need to be strengthened immediately.
Because if Alabama loses in the District Court, the 11th Circuit has already explained that “Our role is to apply the law the Supreme Court has laid down to the facts the district court found.” So the 11th Circuit will likely affirm the district judgment. Then it will go to the Supreme Court, which this coming year will have what? a dozen? cases to pick from, none of which bring the Life issue. The Supreme Court would rather take one of those and then say that is the abortion case we will decide this year, sorry, Alabama.
Another part of Pat Robertson’s statement about Alabama’s HB314 is that the Supreme Court normally only hears cases where there is a “split in the circuits”; that is, where different circuit courts come up with opposite rulings. “And we haven’t gotten there yet.”
Certainly, if HB314 wins in the district and 11th Circuit, that will be not only a “split in the circuits”, but if the Supreme Court doesn’t take the appeal it would be virtually the end of legal abortion as other states scramble to place a similar law before their circuits.
But as far as satisfying the Supreme Court’s Rule 10c which says the Court prefers cases where lower courts have “decided an important federal question in a way that conflicts with relevant decisions of this Court”, that is abundantly satisfied by the fact that virtually all courts below the Supreme Court have said the Supreme Court said the opposite of what it actually said. Roe did not actually rule that babies are not “persons”, treat unborn personhood as “a matter of law”, or treat the factual nature of the unborn as irrelevant, but the opposite: that its precedent must be overturned when its factual premise is proved wrong.
Adding these points to Alabama’s defense will help Alabama’s appeal satisfy Rule 10c and be selected by the Supreme Court, even if it loses below.
Roe did not rule that babies are not “persons”. Roe said “the judiciary…is not in a position to speculate” about “when (constitutionally protected) life begins” – that is, when babies become people – “recognizably human, or in terms of when a ‘person’ came into being, that is, infused with a ‘soul’”.
In other words, Roe did not rule, one way or the other, on whether babies are “persons”.
Roe did not treat unborn personhood as “a matter of law”. Roe said the experts on whether babies are “persons” are not judges, but doctors and preachers! (“…those trained in the respective fields of medicine and theology…”)! The Supreme Court doesn’t defer to the superior expertise of doctors and preachers on a matter of law! Roe certainly didn’t treat “when [constitutionally protected] life begins” as a matter of law!
Roe did not treat the fact that all unborn babies are “recognizably human as irrelevant. Nor did the Court treat the established fact that babies are “recognizably human” as irrelevant: once “established”, Roe said, all states must “of course” outlaw abortion.
“If this suggestion of personhood [of unborn babies] is established, the…case [for legalizing abortion], of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [14th] Amendment.” Roe v. Wade, 410 US 113, 156
Those points are not made in HB314’s “Legislative Findings”. They were not made in Alabama’s dismemberment law which the 11th Circuit shot down last year. Adding them to Alabama’s defense this year would help neutralize the deadly exacerbation of Supreme Court precedent by lower courts.
These are the kinds of facts that satisfy the Supreme Court’s test of when precedent must be overturned.
The precedent must be overturned when its factual premise is proved wrong. Justice Kavanaugh explained during his Senate confirmation hearings that when the “factual premise” of a precedent is shown to be “erroneous”, that is a routine basis for overturning precedent.
Dictionary.com explains: “Stare Decisis: the doctrine that rules or principles of law on which a court rested a previous decision are authoritative in all future cases in which the facts are substantially the same.”
Kavanaugh said that after he told Republicans that Roe v. Wade is “precedent upon precedent.” You can watch the following exchange at 4 hours, 52 minutes, 11 seconds of the hearing video. More of the transcript begins at page XXXVIII of my book.
Senator Whitehouse (concerned about a precedent that Democrats don’t like): The hypothetical problem that I have has to do with an appellate court which makes a finding of fact. Asserts a proposition of fact to be true. And upon that proposition hangs the decision that it reaches. The question is, what happens when that proposition of fact…turns out not to be true? …
Kavanaugh: [This is about] precedent and Stare Decisis. And one of the things you could look at, one of the factors you could look at, how wrong was the decision, and if it is based on an erroneous factual premise, that is clearly one of the factors….Sometimes there are mistakes of history in decisions and mistakes of fact. 4:53:50 (End of excerpt)
What is the “factual premise” of Roe? Has it changed?
Roe’s premise was “we cannot tell if babies are humans/persons from fertilization, because the expert witnesses don’t agree.”
Now we are able to ask courts, “Does the unanimous, uncontested establishment by court-recognized finders of facts – expert witnesses, juries, state legislatures, individual judges, and Congress – that all unborn babies are humans/persons, sufficiently invoke Roe’s ruling that legislatures and courts must now protect their 14th Amendment rights?”
That’s right: court-recognized fact finders in every court-recognized category of fact finders are unanimous, of all who have taken a position: “when life begins” is at fertilization. No American legal authority has ruled that it begins any later. Dozens of juries and thousands of expert witnesses in “abortion prevention” cases; 38 states in their “unborn victims of violence” laws; Congress in its version of those laws, 18 USC 1841(d); and several individual judges – such as the 11th Circuit judges last year!
The parties agree that…an unborn child is alive while its heart is beating, which usually begins around six weeks. See How Your Fetus Grows During Pregnancy, Am. Coll. of Obstetricians & Gynecologists (April 2018), http://www.acog.org/patients/faqs/ how-your-fetus-grows-during pregnancy. [West Alabama Women’s Center v. Miller, 17-15208, 8/22/2018]
This needs to be added to the defense, rather than leave the impression that only Alabama thinks like that. (Which is not much stronger a position than Texas took in 1972, when the argument implied that only Texas thinks like that.) This needs to be in the defense, to establish the ground for reversing “precedent upon precedent”. In 1973, the justices said they were “not in a position to speculate” about “when life begins”. Today, if the unanimous ruling of every American legal authority which has taken a position, in every court-recognized category of fact finders, is not enough for every judge to know “when life begins”, it is impossible for any judge to know anything. That is far more than enough basis for invoking the “erroneous factual premise” exception to stare decisis.
In fact, this legally recognizable consensus is so powerful, that it is incomprehensible that it was not included in Alabama’s “Legislative Findings”, and is unlikely to be included in Alabama’s defense in court.
Imagine that a Life Amendment has already been added to the U.S. Constitution, and nobody bothers to cite that Amendment in defense of an abortion ban! How insane that would be!
And yet consider how much more settled a fact is, by the consensus of court-recognized factfinders than by a Constitutional Amendment. No other Constitutional Amendment states a fact.
Imagine if one did. Suppose an Amendment said, “no life ever evolved.” Although that would make me happy, do you see how people would look at those who think that collides with the evidence? Consider the difference between stating a fact in a Constitutional Amendment, and enacting a law, for example, “evolution shall not be taught in any federally supported school.” Evolutionists would still hate it, and say “that amendment is based on a lie”, but they couldn’t logically say “that amendment is a lie”.
It is the fact that unborn babies are living human children that makes killing them murder, not what any law says about it. That’s what makes the consensus of court-recognized fact finders a stronger legal reason to end legal abortion than a Life Amendment.
Which makes it insane for prolifers to not even mention this legally recognizable evidence in each and every pro-life case!
To be fair to the courts, the 11th Circuit couldn’t consider the overwhelming consensus of fact finders because judges are ethically bound to consider only those arguments and that evidence which the parties to the case have submitted, and no party to the case mentioned the overwhelming consensus of fact finders. That’s why it is so critical for prolifers to understand and discuss legal strategies in depth. Lawmakers can’t introduce bills that no one understands, or that no one wants to study so they can understand.
The precedent must be overturned when a holding is outdated by the criteria of an adjacent holding. It was not honest of the judges to say “there is only one Supreme Court, and…we follow its decisions.”
The 11th did not follow the decisions of the Supreme Court, by observing only its “holding” that abortion is legal, and ignoring (1) its “independent ground for the decision” that abortion is “legal” only because there was not clear enough evidence before the Court in 1973 that first and second trimester babies are “recognizably human”, and also ignoring (2) Roe’s holding that abortion must be outlawed when clear evidence becomes available. (This topic is argued more fully beginning p. 56 of my book.)
To follow one part of Roe, and ignore the criteria in another part for how long the one part may remain in effect, is to violate every part of Roe. To follow a holding ruled outdated by an adjacent holding is to follow no holding. Besides being deadly and a provocation to the wrath of God, (who cares about THAT? Let’s move on to something people care about:) it is illegal, unconstitutional, and is a major conflict between lower courts and the Supreme Court, which the Supreme Court lists as a reason to review a case.
To put this in the language of our culture:
“Yes, Roe v. Wade made abortion ‘legal’. But only temporarily, for as long as the Court had insufficient evidence that unborn babies are ‘recognizably human’. Now that the evidence is unanimous among all court-recognized finders of facts, abortion is legally recognizable as murder. If united prolifers ever present that evidence in court, who are informed enough to understand when judges dodge that evidence, it will be impossible for any judge to squarely address that evidence, and keep abortion ‘legal’.”
It is hard to imagine that Roe’s condition for keeping abortion legal – that evidence of unborn humanity remains scarce – was such a subtle detail that courts may be forgiven for not noticing it. The whole Roe decision was a 65-page discussion of the scarcity of recognition of unborn babies as humans in law, religion, and history.
“Stare Decisis” is the phrase you have heard which is discussed in our culture as if it means “The Supreme Court will NEVER reverse a ruling, no matter how outdated, no matter how ignorant, no matter how criminal. Roe makes abortion ‘legal’, so the infanticide must continue until Jesus comes.”
Fortunately, as explained previously, it comes with exceptions. The exception previously explained is when it is based on an “erroneous factual premise”. Another exception explained below is when it is simply “erroneous” or “wrongly decided”. As has just been explained, the third guard against precedential absurdity is that stare decisis applies to not just the effect of a ruling, but to all the reasoning behind it – the “ground for the decision”. Here are a few Supreme Court quotes confirming this principle:
“Virtually every one of the Court’s opinions announcing a new application of a constitutional principle contains some explanatory language that is intended to provide guidance to lawyers and judges in future cases….It is quite wrong to invite state court judges to discount the importance of such guidance on the ground that it may not have been strictly necessary as an explanation of the Court’s specific holding in the case…..‘As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also their explications of the governing rules of law’….‘Although technically dicta, . . . an important part of the Court’s rationale for the result that it reache[s] is entitled to greater weight . . .’” – Carey v. Musladin, 549 U. S. 70 (2006), Concurrence by Stevens
Prolifers need to understand these exceptions to stare decisis, so they can unite behind reminding judges, through their support of effective laws, “amicus” court briefs, and votes.
Precedent must be overturned when a ruling is “wrongly decided”. The Foundation for Moral Law, created by Judge Roy Moore in 2003 while he was Chief Justice of the Alabama Supreme Court, submitted an amazing amicus (“Friend of the Court”, as opposed to a party to the case) brief in last year’s 11th Circuit case. It reminded judges of their authority, and duty, to disregard Roe’s legalization of abortion because it was “wrongly decided”.
“…every judge in the country is sworn to uphold the Constitution itself, not Supreme Court precedent…that was clearly contrary to the written Constitution….
(p. 14) “[A]ll executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution[.] U.S. Const. art. VI, cls. 2-3. According to the Supremacy Clause, the Supreme Law of the Land consists of three components: (1) the Constitution…(2) laws of the United States made pursuant to the Constitution … and (3) treaties….
The Supremacy Clause does not list Supreme Court decisions as a fourth component of the Supreme Law of the Land. Moreover, the next clause requires judges of lower federal courts to swear or affirm that they will support “this Constitution.”
Again, that clause does not require state judges to swear to uphold Supreme Court precedents. Therefore, if a lower federal court is presented with a situation where it is impossible to abide by both the Constitution and a decision from the United States Supreme Court, the Supreme Law of the Land requires the judges of that court to abide by the Constitution.”
The brief (p. 15) said stare decisis dates as far back as Sir William Blackstone (whose 18th Century Commentaries were quoted widely by America’s Founders and were credited with influencing our Constitution). Blackstone wrote,
“Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be clearly contrary to divine law….For if it be found that the former decision is manifestly absurd or unjust, it is declared not that such a sentence was bad law, but that it was not law, that is that it is not the established custom of the realm, as has been erroneously determined….”
The brief (p. 17-18) explains what is absurd about a 1958 precedent that says
Marbury v. Madison [said] “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. – Cooper v. Aaron, 358 U.S. 1 (1958),
What if we applied this reasoning to the legislative and executive branches, the brief asks?
“…the [Constitution authorizes] the legislative branch…to make laws; therefore, whatever laws the legislative branch makes are the supreme law of the land.” Not!
“…the [Constitution authorizes] the executive branch… to enforce the laws; therefore, whatever the executive branch enforces is the supreme law of the land.” Not!
Indeed, (p. 19) “Chief Justice Marshall said in Marbury: ‘It is emphatically the province of
the judiciary to say what the law is.’…He did not say it is exclusively the province of the judiciary to say what the law is.”
P. 22 Finally, the Court should note that an unborn child’s right to life is not only protected by the Constitution but also by the God whom our system of government presupposes. “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.” The Declaration of Independence para. 2. (U.S. 1776) (emphasis added). Every human being has value because God made man in His image. Genesis 1:27. In addition, He made it abundantly clear that every person has the right to life when He said, “You shall not murder.” Exodus 20:13. The Supreme Court’s abortion jurisprudence therefore violates not only the Supreme Law of the Land but also the fundamental law of the Creator, which cannot be violated without provoking His wrath. See Romans 1:18, 29 (stating that the wrath of God is being revealed against man because of murder). Therefore, Amici respectfully and strongly urges this Court to stand with the Constitution of the United States and protect the God-given right to life of innocent unborn children rather than following the abjectly unconstitutional abortion precedents of the Supreme Court.
The “Personhood” distraction
A widespread misunderstanding among prolifers is that Roe created a legal distinction between “humans” and “persons”, so that proving that unborn babies are “humans” falls short of establishing that they are “persons”. This theory grew out of a desperate attempt to make sense of Roe’s desperate logic. This theory is a distraction from a clear strategy for outlawing abortion. This theory was followed by the Foundation for Moral Law amicus, and appears to drive HB314’s “Legislative Findings”.
Roe created no such distinction. Nor has any other Supreme Court precedent.
Were this theory correct, there would be huge problems, first, for my legal strategy for outlawing abortion in a way that survives courts, and second, for American Freedom.
First, my legal arguments rely on the overwhelming consensus of court-recognized fact finders that all unborn babies are humans, a.k.a. persons. Most of these rulings do not use the terminology “persons”, but use other synonyms, such as “members of the species homo sapiens”. If “humans” are not necessarily the “persons” whom the 14th Amendment protects, most of this consensus will not be helpful.
Second, the 14th Amendment is the only part of our U.S. Constitution that holds states accountable for violating individual “fundamental rights”. It was designed to close the loophole in the 13th Amendment that allowed Southern states (like Alabama) to continue enslaving blacks. It requires “equal protection of the laws” for all “persons”. It would never have ended slavery, nor could it ever have protected any fundamental right of anyone, had “persons” meant anything less than every human, with the power to decide which humans are not “persons” left in the hands of any branch of government.
As the amicus correctly points out,
“Unacknowledged in Roe was the fundamental presumption of personhood that underlies the Fourteenth Amendment. Was not the purpose of the Fourteenth Amendment to extend personhood to those previously considered non-persons?” (Footnote 3, p. 5)
It is the intent of the Amendment to ensure that all humans, even those least protected by law previously, receive “equal protection” from laws; therefore, its word “persons” obviously is intended to include all humans.
If any branch of government has the authority to rule that any group of humans are not “persons”, then their ruling will block application of the 14th Amendment, and slavery may resume. Or torture, censorship of Christians, or any other evil you can imagine in addition to abortion, that any branch of government might like. (If slavery resumes, it won’t be of blacks any more. Blacks vote. It would be of “illegals”.)
Neither has any other Supreme Court case distinguished “persons” from “humans”. A review of important cases that have equated the two begins on page 38 of my book.
The quickest way to disprove any creation by Roe of a difference between “persons” and “humans” is to quote Roe equating the two.
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.” Roe, p. 133
A slightly brainier way is to note that the entire 65 page decision was about how the unborn were treated throughout law, religion, and history, and no part of the discussion attached varying significance to what words were used to describe them.
But if a distinction between “humans” and “persons” does not explain Roe’s confusion about whether first trimester babies are “recognizably human”, what does?
The blame goes to Dorland’s Illustrated Medical Dictionary, cited in Roe, which had fraudulent illustrations that made human embryos look like animal embryos. You can see those doctored (the old word for “photoshopped”) illustrations on page 166 of my book.
The amicus begins with a good overview of how the prolife “personhood” theory developed.
…Roe’s criticism of the Texas law for failing to treat unborn children as full persons, however, has led to the development of the argument that the states may remedy the problem Texas had in Roe by recognizing unborn children as persons, thus causing the right to abortion to collapse. (p. 5)
Treating this theory as correct, (based on Roe’s notorious Footnote 54 which will be addressed shortly), the amicus proceeds to prove that Alabama did a better job than Texas of satisfying Roe’s demands. Page 6: “Since 2011, the Alabama Supreme Court, either explicitly or implicitly, has recognized the personhood of unborn children in five major pro-life decisions.” Page 10, concluding: “As the above cases demonstrate, the answer to the question of whether unborn children are recognized as ‘persons’ in the State of Alabama is an unequivocal ‘yes.’” Page 11, the unborn are called “persons” in Alabama law: “Thus, the biggest omission that Roe identified in the Texas laws at issue in that case is not present here.” Conclusion:
The above survey of statutes, cases, and special writings demonstrate that the unborn are recognized as persons under Alabama law. Amici thus urge the Court to consider whether the “suggestion of personhood” discussed in Roe has been established in Alabama law. If so, then the case for abortion “collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.” Roe, 410 U.S. at 156-57 This Court should consider (p. 23) whether the State of Alabama has by these actions brought the unborn within the protection of the Fourteenth Amendment’s right to life.
But can a single state establish that abortion is murder? Federal Judge Pettine, shooting down Rhode Island’s 1973 abortion ban, didn’t think so.
It is true that the Court in Wade and Bolton did not attempt to decide the point “when human life begins.” No reading of the opinions, however, can be thought to empower the Rhode Island legislature to “defin[e] some creature as an unborn child, to be a human being and a person from the moment of its conception.” Roe v. Wade and Doe v. Bolton can [not] be nullified by the simple device of a legislative declaration or presumptions contrary to the court’s holding. Doe v. Israel, 358 F. Supp. 1193, 1197
The 11th Circuit, where HB314 is headed, didn’t think so last year. They didn’t think state legislatures could exclusively “resolve questions of medical uncertainty…where constitutional rights are at stake.”
The second reason that the State’s medical uncertainty argument fails is that controlling precedent refutes it. See Whole Woman’s Health, 136 S. Ct. at 2309–10 (rejecting the view that “legislatures, and not courts, must resolve questions of medical uncertainty” and noting that courts “retain[ ] an independent constitutional duty to review factual findings where constitutional rights are at stake”) P. 29
One state can’t “establish” what 38 states can!
Deuteronomy 17:6 At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death.
The 11th Circuit’s authority to review “Legislative Findings” doesn’t mean state legislatures can’t state facts. It doesn’t mean that the facts stated by states are given no weight. It only means that it is proper for courts to dispute statements of facts that are clearly erroneous. In fact, courts give deference to legislative findings that are not clearly erroneous, as the Supreme Court explained in a part of the Whole Women’s Health v. Hellerstedt ruling that the 11th Circuit didn’t quote:
And, in Gonzales the Court, while pointing out that we must review legislative “factfinding under a deferential standard,” added that we must not “place dispositive weight” [that settles a matter regardless of any other evidence] on those “findings.”
That is actually a logical position, considering that if states could violate fundamental rights with false statements, states might then, for example, pass a law enslaving “illegals”, justified with a “legislative finding” stating that it is medically uncertain whether “illegals” are “persons in the whole sense”. (Oops, did I just start a political movement?)
The statements of facts which the 11th Circuit rejected were about how doable it is to kill an unborn baby before dismembering it. (So that the baby would die in less pain.) The ruling took many pages proving that really isn’t feasible, based on the testimony of several medical experts. By contrast, the statements of facts that will end legal abortion are about the humanity of all unborn babies, against which no medical expert can be found. At least so far, no court-recognized fact finder has told any court in any case that “when [constitutionally protected] life begins” is any later than fertilization.
That doesn’t exactly mean that if one state explicitly “finds” that unborn babies are fully human, that there is no counter argument. There is always how the unborn are treated in law, which was Roe’s excuse for finding no support from fact finders for unborn humanity in the first place. Can one state’s explicit affirmation that babies of humans are humans cancel (1) another state’s protection of murder even beyond what Roe dared? and (2) Roe’s view of the state’s own treatment of the unborn, (in its notorious Footnote 54 – see next section)?
Roe did not say how much evidence would satisfy Roe’s need for evidence that babies of humans are humans; it certainly didn’t assure us that a single state’s concurrence would be “enough”.
Judging the beliefs of fact finders by their actions.
Romans 3:4 …God is true, even if everyone else is a liar. As it is written, “You are right when you speak, and win your case when you go into court.” (ISV)
Christianity teaches us to not judge God by His People. It is not just Christians who distinguish between how one lives and what one believes. Everyone else judges Christians for any discrepancy; the bigger the discrepancy, the more joyous the judgment. Christianity also warns us that there is evil in us all – our love for each other is not perfect: which makes it the essence of terror to place the estimation of our own human worth in the hands of others.
By the same logic, it is foolish to judge whether fact finders (legislatures, judges) really believe what they rule about “when life begins”, by how perfectly they treat the unborn. That manner of judging was possibly the greatest error in Roe.
Nevertheless, how we treat the unborn does indicate something about what we believe about them. And what court-recognized fact finders (who are allowed to incorporate into their beliefs what they have learned from God) believe about others is the best measure so far of reality that is available to human courts. (God authorizes humans to judge each other: 1 Corinthians 6, Romans 13:1-7, Exodus 18) So long as we don’t confuse how we treat others with how we should treat others.
The FML amicus, dodging N. 54, doesn’t want Alabama blamed for mistreatment of the unborn which was required by Roe.
Some portions of Alabama law still do not fully treat the unborn as persons….But each of those laws was passed after Roe was decided. Thus, unlike the Texas laws in Roe, any fault for failing to treat the unborn fully as persons in the statutes mentioned above should fall at the feet of the United States Supreme Court. It would be hypocritical of that Court to lead the State of Alabama to believe that it could not fully treat the unborn as persons and then fault the State of Alabama for following that guidance. (Page 12-13)
Some states could make the same point. But not New York which on the 46th anniversary of Roe removed all criminal penalties for anything abortionists do, and let non-doctors be abortionists. Nor can, really, any state which has not adopted restrictions which the Supreme Court has allowed.
Which raises the question, can a single state like Alabama inform the Supreme Court that abortion is murder, while other states like New York say even after live birth “abortion” is still not murder? Can abortion be murder in some states and “a woman’s right” across the state line?
Yes, says the Foundation for Moral Law. Page 22: “Roe left room for the States to determine whether the unborn are persons or not within the meaning of the law. Alabama statutory law and Alabama Supreme Court decisions recognize the unborn as persons.” This concurs with the dissents of justices Scalia, White, and Thomas, who have written in favor of returning the “legal abortion” decision to states, as it was before 1973. That seemed logical as long as whether babies are humans can’t be objectively determined, but is only a “value judgement” of “society”, which the three actually argued in Casey.
But how logical is that?
It is logical if it really doesn’t matter whether abortion in fact murders living baby humans: what matters is whether law regards them as “persons”.
But babies are in fact as human as judges, and judges say we shouldn’t murder judges. How can we tolerate any state murdering babies? Roe’s own statement was that once we learn these babies are “recognizably human”, then “of course” states will need to outlaw them. All states, the logic demands, because all babies are then protected by the 14th Amendment Right to Life, which no state may violate.
It is as absurd to imbue state legislatures with the power to define who gets to be a “person” as it is to forfeit that responsibility to SCOTUS.
Roe’s notorious Footnote 54. Footnote 54 says the evidence that unborn babies “have never been treated in the law as persons in the whole sense” is right there in the two major exceptions to Texas’ abortion ban: babies may be aborted to save the life of the mother, and mothers are exempted from any penalties for getting an abortion.
Footnote 54: When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother’s condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment’s command?
There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out, n. 49, supra, that in Texas the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?
It is strange that Alabama’s HB314 includes both these exceptions, after the Foundation for Moral Law amicus went to so much trouble to insist, the year before, after quoting the notorious Footnote 54 in full:
“As the above cases demonstrate, the answer to the question of whether unborn children are recognized as “persons” in the State of Alabama is an unequivocal ‘yes.’ …Thus, the biggest omission that Roe identified in the Texas laws at issue in that case is not present here.”
Refuting N. 54. Alabama’s HB314 did not dodge Footnote 54, and should not have. There are sound legal, logical, and Biblical reasons for those two exceptions. The only possible logical response to N. 54 is to simply explain to judges who surely already know better, that the legal reason for stiffer penalties for abortionists than moms is (1) the greater culpability of adult doctors than young teen moms, and (2) to get moms to testify against abortionists; and the legal reason for a “life of the mother” exception is because while we are inspired by people who give their lives for others, we can’t require them to by law.
These principles are the basis for legitimate exceptions to all kinds of laws. These principles are so familiar to judges, lawyers, and lawmakers, that Clark Forsythe was justified in suspecting the motives of Justice Blackmun in writing that notorious footnote.
Forsythe on N. 54. A curious spin on Footnote 54 was penned by Clarke Forsythe, who heads Americans United for Life, and was mentioned in the Foundation for Moral Law amicus.
The FML amicus said Forsythe’s article “conclud[ed] that personhood laws would not directly conflict with Roe v. Wade and Planned Parenthood v. Casey”. That article is not online, but another article by Forsythe that makes the same point is. In it, Forsythe dismissed footnote 54 as gratuitous derision:
…the [prolifer’s] misguided argument [which was like that of the FML amicus] then quotes footnote 54 of Blackmun’s [Justice Blackman, author of Roe] opinion, without realizing that Blackmun is being ironic…Blackmun is not seriously entertaining personhood; it’s clear from the context (and from the rest of the Roe opinion) that he rejects it as nonsense….Blackmun set up his sneering contradiction only after concluding that the 14th Amendment did not protect the unborn. He thought his manufactured scenario would lampoon Texas’s case.
Roe does not say there is anything wrong with “exceptions”, Forsythe wrote.
Blackman is not saying that exceptions are “unconstitutional” and [he] never uses such language. If Blackmun had seriously entertained the notion that the 14th Amendment protected the unborn, the Texas statute would not have impeded him; the Court could have struck [the two exceptions] down.
Well, of course, if babies were not people, then not only are “exceptions” OK, but “exceptions” should be the rule, as Roe made them the rule. But what about the logic given in Footnote 54 and pursued by many prolifers, that our exceptions contradict our witness that babies are people? Forsythe wrote:
The urban legend has it exactly backwards: The Texas statute does not define the meaning of the 14th Amendment; the 14th Amendment defines the validity of the Texas statute.
Indeed, the degree to which laws fail to give “equal protection” to all humans is no evidence of the degree to which people are not humans! “Equal protection of the laws” for all humans is the 14th Amendment’s “gold standard”, which all other laws struggle to reach. The various failures of our laws to achieve perfect justice is no evidence that anyone has less right to justice. The imperfections of lawmakers, judges, and police in treating some people as “more equal than others” does not prove some people really are “more equal than others”!
Billions of examples may be found of laws not protecting everyone equally, without one example (I hope) of judges taking this for evidence that people are not, in fact, equal. (Outside abortion.) It is absurd to imagine that because laws do not protect everyone equally, therefore not everyone is equal.
Personhood is acknowledged by any valid law. But it is not created by any law!
Roe never argued that people become something less than people when laws don’t treat them unjustly! That, fortunately, was not the purpose of Roe’s inquiry. Roe’s purpose was to look for evidence, in the absence of explicit statements, that legislatures – fact finders – regarded the unborn as fully human.
The quibble of Roe was not whether babies are “persons” or merely “humans”, but whether very young babies depicted in Dorland’s Illustrated Medical Dictionary as indistinguishable from pig fetuses are “recognizably human”.
The reasoning of the personhood movement indeed seems to stumble over this point. As if babies are turned into “persons” within the borders of a state by its legislature outlawing abortion without exceptions – a transformation accomplished by the magic of Roe – rather than babies already being people by the Creative Word of Almighty God from before fertilization, (Jeremiah1:5) no matter what any tyrant says about it, and even if they cross the border into another state.
Forsythe correctly says states don’t change law; but he does not appreciate that states DO establish facts. Perhaps he does not consider that the Supreme Court treats “when [constitutionally protected] life begins” as the domain of fact finders.
Here Forsythe tells prolifers none of their efforts can succeed (until, he says elsewhere, we pass a Life Amendment to the U.S. Constitution):
[Prolifers think if you] “pass ‘personhood’ legislation in your state, as a bill, or as a constitutional amendment, and according to the U.S. Supreme Court Roe v. Wade decision itself, [so-called] ‘legal’ [sic] abortion is over in that jurisdiction. [That hope is] futile…(because of our system of federalism) it will not – it cannot – establish 14th Amendment personhood or set up a test case to overturn Roe.”
He is correct that a single state, citing only its own authority, can’t change a law. But the consensus of 38 states, dozens of juries, thousands of expert witnesses, Congress, and several individual judges, can certainly establish a fact!
Although N. 54 reasons like someone who doesn’t understand law, Forsythe is too quick to dismiss the reason for it given in Roe. Blackmun’s said his purpose in noting Texas’ two exceptions was part of his 65 page review of the scarcity of clear evidence from court-recognized fact finders that unborn babies of humans are “recognizably human” even from the development of their first visible features, which Dorland’s Illustrated Medical Dictionary had fraudently depicted as looking like animal fetuses.
Yes, individual states can clarify facts, though probably not if the only evidence they cite is their own say-so.
For my complete interleaved response to that and other articles by Forsythe, see [http://saltshaker.us/SLIC/AULmissingOpportunity.pdf AUL Missing Opportunity of Lifetime (60 million lifetimes)]
|If the fact that unborn babies are humans is untrue, then of course killing nonpersons really isn’t murder, but rather a fundamental right of a woman. If the unborn were humans and persons with a constitutionally protected “right to life” as a matter of law, but were in fact tumors threatening their human hosts, respect for law would suffer as much as it does now. In either case, reality is the standard by which the law is judged; law is not the standard by which facts are determined. Law needs to get in step with reality, because reality is not disposed to get in step with law.|
What can WE do about all this?
Develop more curiosity about the reasoning that has tortured 60 million of your fellow Americans to death than can be satisfied by a half dozen sentences of details sprinkled through an emotional 4-page fundraising letter.
Prolifers are unbelievably divided amidst all this carnage. Listen. Understand. Reason. Interact.
It’s not that hard to learn as much about prolife law as the average lawmaker. Which should concern you. Study. Read what states are trying. Read court cases to understand how judges are justifying their complicity with killers. Read the dissents to understand what is wrong with the rulings. Interact with prolifers, lawmakers, and lawyers. Learn. Double check your impressions. Educate.
Prolifers disagree about what to call themselves: prolifers? Antiabortionists? Abolitionists? They disagree about whether other prolifers are helping more than they are hurting. They disagree about whether to even care about laws, or just go to the “murder mills” and “sidewalk counsel”.
Develop more curiosity about the reasoning that has tortured 60 million of your fellow Americans to death than can be satisfied by a half dozen sentences of details sprinkled through an emotional 4-page fundraising letter.
Prolifers are unbelievably divided amidst all this carnage. Prolifers disagree about what to call themselves: prolifers? Antiabortionists? Abolitionists? They disagree about whether other prolifers are helping more than they are hurting. They disagree about whether to even care about laws, or just go to the “murder mills” and “sidewalk counsel”. Listen. Understand. Reason. Interact. You don’t have to judge prolifers for following a different strategy than yours. You can love, appreciate, and support them, even if they don’t reciprocate as much as you think you deserve. Learn to be grateful for ”any” enemy of the enemy of the unborn.
Luke 9:49 John said, “Master, we saw someone driving out demons in your name. We tried to stop him, because he wasn’t a follower like us.” 50 Jesus told him, “Don’t stop him! Because whoever is not against you is for you.” ISV
It’s not that hard to learn as much about pro-life law as the average lawmaker. Which should concern you. Study. Read what states are trying. Read court cases to understand how judges are justifying their complicity with killers. Read the dissents to understand what is wrong with the rulings. Interact with prolifers, lawmakers, and lawyers. Learn. Double check your impressions. Educate.
The opinions expressed in this commentary are solely those of the author and are not not necessarily either shared or endorsed by iPatriot.com.