ro aborts say that they want abortion to be "safe, legal, and rare." Pro-lifers vehemently disagree.Posted on 10/24/2004 3:30:47 PM PDT by Ed Current
Pro aborts say that they want abortion to be "safe, legal, and rare." Pro-lifers vehemently disagree.
Abortion, pro-lifers say, can never be safe, certainly not to the child. Nor, they claim, are they safe for the mother, citing the growing literature, demonstrating that even the so-called "medically safe" abortion is dangerous to the mother.
Abortion, they vigorously contend, cannot be legal. It is, they assert, murder and contrary to the nation's charter commitment that all human beings are equal and entitled to the inalienable right to life. No court and no legislature can change that.
Finally, abortion, they state, will never be rare, so long as it is promoted as a constitutional right. They maintain that women will never be deterred from killing "unwanted" children unless and until abortion is once again condemned by civil society as a morally reprehensible homicide.
Without question, such pro-life rhetoric is principled and powerful. For too long, however, pro-life strategies to restore legal protection for the pre-born child have been pragmatic and anemic. Sadly, their proposals for action have too often matched the pro-abortion slogan that abortion should be "safe, legal, and rare."
Since Roe v. Wade, the dominant pro-life strategy at the state and local level has been to limit, not prohibit, abortion. To this day, pro-life advocates continue to promote such laws as requiring parental consent before a minor may get an abortion, a 24-hour waiting period, and informed consent. Such proposals concede that abortions are legal, but should be limited so as to make them safer and rarer.
Proposals to ban abortions after the twentieth week of gestation and partial-birth abortions also concede that abortion is legal. Again, such efforts, even if successful, would only prohibit a limited number of abortions, with the possible effect of making abortion safer and rarer.
Even the proposal to prohibit all abortions except in cases of rape, incest, and threat to the life of the mother, is based on the assumption that the killing of a baby in the womb of a mother is legal, even though the baby has done nothing to deserve death. Such a compromise of the principle of the sanctity of innocent human life presupposes that abortion should remain legal, but only very safe and very rare.
In short, the pro-life forces have unwittingly adopted strategies that reinforce the opposition's rhetoric and undermine their own. As a result, there are any number of politicians who qualify as pro-life so long as they support any measure, no matter how modest, limiting a woman's right to an abortion.
This must end. If it does not, then innocent human life in the wombs of American mothers will never again be protected. Rather, abortion will remain almost unlimited. And the holocaust will continue, notwithstanding the pro-life protests that the taking of innocent human life should never be sanctioned by a civil society, no matter how safe nor how rare.
What kind of pro-life strategy ought to be adopted that is consistent with pro-life principles and that has a realistic possibility of success- To map out such a strategy, one must first address two preliminary questions.
First, what is the constitutional framework within which the issue should be resolved- Second, what law defines personhood, and does that definition include a child in the womb of the mother? Constitution
Since Roe v. Wade, pro-life strategies have been based upon the premise that the Supreme Court's opinion in that case is the Supreme Law of the Land. Therefore, short of a constitutional amendment or Court reversal, it has been assumed that federal, state, and local officials - executive, legislative, and judicial - must conform their actions concerning abortion to rules handed down by the courts.
This working premise is erroneous. It is both unwise and unconstitutional.
Article VI of the United States Constitution states that three things are the Supreme Law of the Land: "This Constitution ... the laws of the United States ... made in pursuance thereof; and all treaties ... made under the authority of the United States." Conspicuously absent from this list is a court opinion.
At the time that the Constitution was written, it was universally understood that court opinions were not laws. Therefore, under no circumstances could it be contended that federal court opinions are "the laws of the United States" within the meaning of Article VI.
Nor can it be maintained that a court opinion, even an opinion rendered by the Supreme Court, determines what the Constitution means. Again, at the time that the Constitution was written, it was universally understood that a court opinion interpreting a provision of the Constitution was not equivalent, either in design or effect, to that constitutional provision.
To the contrary, the Supreme Court itself, when exercising the power of judicial review, acknowledged that the Constitution governed the court, not vice versa. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 179-80 (1803). Thus, the Constitution is not what the Supreme Court says it is. Rather, the Constitution is what the Constitution says it is.
Accordingly, when Article VI of the Constitution states that all federal, state, and local officials executive, legislative, and judicial, "shall be bound by oath or affirmation to support this Constitution," it means that those officials are duty bound to support the Constitution as it is written, not as it has been construed by the United States Supreme Court.
This does not mean that a civil government official may defy a court order rendered by the United States Supreme Court in a case in which that official was a party. It does mean, however, that a state or local official who is not a party has the duty and the power to act according to the constitutional text, even when the action taken is inconsistent with a court opinion interpreting that text.
In addition, under the doctrine of separation of powers, the Supreme Court cannot impose its view of the Constitution on Congress or upon the President. Both Congress and the President have co-equal power with the Court to apply the Constitution, and an independent duty to act according to the Constitution as they understand it, not as the Court has determined it to be.
This is the very essence of the rule of law. No human institution has the final and supreme power to determine what the law is. Otherwise, the rule of law would be reduced to the rule of those who possess such final and supreme power.
This wisdom is reflected in the checks and balances established by the Constitution, for as James Madison wrote in Federalist No. 47, "the accumulation of all powers ... in the same hands ... may be justly pronounced the very definition of tyranny." Personhood
In Roe v. Wade, the Supreme Court decided that the Constitution does not recognize a child in the womb of a mother as a "person" entitled to the protection of the due process clause of the Fourteenth Amendment. To support this conclusion, they cited a number of constitutional provisions in which "person" can only be understood as referring to a human being who has been born. Roe v. Wade, 410, U.S. 113, 156-57 (1973).
Since Roe v. Wade, efforts to define a pre-born child as a person have assumed that the child, to be a person, must be one according to the constitutional text in order for that child to achieve the status of personhood and, thereby, to be entitled to protection against abortion.
For example, in the early 1980s, the United States Senate had before it "The Human Life Bill." This Bill defined "person" for the purposes of the due process clause of the Fourteenth Amendment in such a way as to include a human baby in the womb of a mother from the very moment of conception. See Report to the Committee on the Judiciary, United States Senate from its Subcommittee on Separation of Powers pp. 1-2 (1981).
One could argue that Congress could not have done otherwise, because it was acting pursuant to its authority under the Fourteenth Amendment which limits its power to enforcing the terms of that Amendment. Hence, any Congressional definition of person must conform to the constitutional textual meaning of that word.
But the findings contained in the Report proposing the Human Life Bill were not so confined. To the contrary, they went behind the constitutional text to the common law as reflected in the nation's founding charter, the Declaration of Independence.
That law, the Report stated, established that all human beings are legally equal. Furthermore, the Report continued, the very purpose of the Equal Protection Clause of the Fourteenth Amendment was to enforce that equality rule upon the states. Such a rule of equivalent value of all human life, the Report concluded, demanded that abortion be outlawed. Id. at 15-16.
Even though the Report drew this conclusion, it did not incorporate it into the text of the Human Life Act. Instead, it left it to the discretion of every state to decide whether to prohibit abortions, and if so, by what rules. Indeed, the Report emphasized that the Human Life Bill did not make abortions illegal, but only made it possible for state legislatures to make them illegal. Id. at 19-20.
By leaving it to the States to decide whether a child in the womb of the mother is a human being deserving the full protection of the law, the Report chose not to embrace the common law definition of personhood. That decision has plagued the pro-life movement to this day and in two distinct ways.
First, it tacitly conceded that state and local legislatures may define legal personhood in any way that they choose, notwithstanding the life principle embraced by the nation's charter. Second, it assumed that Congress has no authority to protect innocent human life in the womb of a mother if the states choose not to provide such protection. Neither of these assumptions is true. Congress
As for Congress, the very purpose of the Equal Protection Clause was to deny to the states any power to withhold from any class of human beings the benefits and protections of the common law. As the Supreme Court observed in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873), the Clause was specifically designed to protect former slaves who were being denied their rights to life, liberty, and property because states were not enforcing the common law on their behalf.
The Equal Protection Clause was designed to guarantee such common law protection by denying to the States any power to classify or treat any human being as anything but a legally recognized person. That is exactly what states are doing when they follow the Supreme Court's ruling in Roe v. Wade - denying to a class of human beings the protection of the common law solely on the ground that pre-born children are not persons.
Following the adoption of the Fourteenth Amendment, Congress enacted a number of criminal statutes designed to outlaw such practices. One of these statutes protects "any inhabitant" from acts "under color of any law, statute, ordinance, regulation, or custom" that "willfully" deprive him "of any rights, privileges, or immunities secured or protected by the Constitution" or of "full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." 18 U.S.C. Section 242.
This law should be enforced by a President of the United States against abortion providers and women seeking such services, especially when those services are funded by state law or otherwise given special encouragement or protection by that law.
To be sure, such a prosecution would succeed only if there is proof that the abortion providers and women intended to deprive the pre-born child of rights secured by the Constitution or by the laws of the United States. Such proof could be provided by reference to the "rule of law" governing life in the Declaration of Independence and, thereby, meet this burden. See Screws v. United States, 325 U.S. 91, 103 (1945).
Obviously, this problem could be resolved if Congress acted by declaring that human life begins at conception and by redrafting the Human Life Bill in terms of the Equal Protection Clause. Such a Bill would make it clear that all human life is to be equally protected and that any state that does not afford such equal protection is violating the common law definition of person. President
In addition to the enforcement of existing or future criminal statutes, the President may instruct the Attorney General to bring civil suits seeking injunctions against abortion clinics and abortion doctors on the grounds that they are public nuisances.
Such a suit would be based upon the same grounds that are set forth in the civil rights statutes set forth above.
Such a suit could very well succeed, especially if based upon evidence that the failure of states to protect the unalienable right to life imposes serious adverse consequences upon the "general welfare" of the country. In defining the general welfare in this context, emphasis should be placed upon the adverse impact that abortion has upon the national economy. Such a strategy is not unprecedented. In re Debs, 158 U.S. 564 (1895).
The President may also, under his constitutional authority to "take care that the laws be faithfully executed," refuse to spend any money appropriated by Congress for the purpose of supporting any activity that facilitates or promotes abortion. This means that the President may cut off all federal funds to such abortion promoting organizations as Planned Parenthood and to such abortion facilitating activities as fetal tissue research.
This power is available to the President even if Congress should mandate that the funds that it has appropriated must be spent. Such a mandate violates the constitutional vesting of all of the executive power in the office of the President because the very essence of executive power is the discretion not to enforce a law. See Marbury v. Madison, supra.
Finally, the President has the power to appoint only judges to the federal bench, including the United States Supreme Court, who have clearly and consistently affirmed the legal personhood of the pre-born. Indeed, his constitutional oath of office to "preserve, protect, and defend the Constitution of the United States" requires him to exercise his appointment power consistent with his understanding of the Constitution, independent of either the judicial or the legislative branches.
In fact, the President's oath of office, the only one spelled out in the Constitution, makes him the primary protector of the Constitution. Only the President is, by the constitutional text, commanded to "preserve, protect, and defend" the Constitution. All other officers are commanded by the Constitution only to "support" it.
As the nation's chief constitutional officer, the president has the duty and authority to issue a Presidential Proclamation affirming the right to life of the pre-born child and to call upon state governments to protect that right with all deliberate speed and appropriate means.
Such a Proclamation would set the stage for aggressive action at the state level to restore the laws prohibiting the taking of innocent human life from the womb to the tomb. States
In many states, statutes prohibiting abortion remain unrepealed and available to local prosecutors to bring criminal actions against abortion providers. While such laws may very well provide for an exception to protect the life of the mother, they afford statutory authority to a prosecutor who takes seriously his duty to "support" the Constitution's high regard for the right to life.
The problem today is that state prosecutors assume that their duty to support the Constitution means obedience to Supreme Court opinions, even when they were never parties to the cases. Rightfully understood, their duty is to interpose their office between Roe v. Wade, a constitutionally erroneous opinion, and the people whose rights they are duty bound to protect.
Even in states where the statutes have been changed to conform to the Roe formula, a prosecutor may still have ample authority under the state's law and constitution to bring criminal actions against abortion promoters and providers.
In Virginia, for example, producing an abortion, except to preserve the life of a mother, remains a felony. At the same time, by statute, a physician is permitted to perform abortions according to different rules governing the first, second, and third trimesters of a woman's pregnancy.
While such a statutory scheme may pass the judicial test laid down in Roe v. Wade, it does not meet the constitutional test laid down by Article I, Section 1 of the Virginia Constitution which reads:
That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact, deprive or divest their posterity; namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
While the United States Constitution may not afford protection to the pre-born, this provision clearly does. And what does a state do when it fails to protect innocent life in the womb of a mother, but "divest ... posterity" of the rights of life, liberty, and property.
Virginia laws that permit the taking of the lives of pre-born children violate this constitutional principle. And where a state constitution lays down a higher standard than the United States Constitution, the state constitutional provision provides an independent and adequate state ground for a state law prohibiting abortion.
In addition, Roe v. Wade can be avoided by any state legislature that challenges its factual underpinnings. The Roe decision is based upon a number of factual assumptions that, if true in 1973, are no longer true today.
The major factual premise of Roe is that a medically safe abortion poses no significant health risks to the mother. Numerous studies since Roe have proved that assumption false. Physiological complications, including uterine perforations, excessive bleeding, and endotoxic shock, attend even the normal abortion process. Other physiological complications, such as cervical and ovarian cancer, placenta previa, pelvic inflammatory disease, appear after an abortion and are causally linked to it.
And there are numerous psychological and emotional side effects. Among the significant emotional risks are guilt and depression, suicidal ideation and sexual dysfunction. Among the psychological disorders are Posttraumatic Stress Disorder and Postabortion Syndrome.
These emotional and psychological traumas contribute to a variety of sociological impairments, including psychic numbing, substance abuse, and relationship instability. This, in turn, adversely impacts family and other intimate associations.
None of this came before the Court in Roe v. Wade. Nor did the Court have before it evidence that the medical profession does not adequately protect the interests of women who obtain abortions in clinics. Nor did it have before it the threat that permitting abortion poses to the sanctity of life generally or to the economy.
Given these glaring factual omissions, Roe v. Wade is no longer a binding legal precedent for, as the High Court itself has observed, changes in the facts upon which a court ruling rests is sufficient reason not to follow that ruling. Planned Parenthood v. Casey, 505 U.S. -, 120 L Ed 2d 674, 703-06 (1992). Conclusion
It is time for a new pro-life strategy, one based squarely upon the principle that the taking of innocent life is never justified. Such a strategy would seize the moral and constitutional high ground in the abortion debate and has a realistic chance to succeed.
Mr. Titus holds the J.D. degree (cum laude) from Harvard and the B.S. degree in Political Science from the University of Oregon from which he graduated Phi Beta Kappa. He is an active member of the bar of Virginia and an inactive member of the bar of Oregon. He is admitted to practice before the United States Supreme Court, the United States District Court for the Eastern District of Virginia, the United States Court of Claims, and the United States Courts of Appeals for the Sixth, Tenth, District of Columbia and Federal Circuits. His constitutional practice has taken him into federal district courts in Alabama, Arizona, North Carolina, Oklahoma, Texas, and the District of Columbia and the state courts of Texas and North Dakota.
He serves as general counsel to the American Health Legal Foundation and the Michael New Defense Fund, as well as Senior Legal Advisor to the The Liberty Committee. He also does research and legal writing for the Free Speech Coalition and other similar organizations dedicated to the restoration of constitutional law and liberty in the nation.
Mr. Titus has appeared as a guest on radio and television shows and, for two years, hosted his own daily radio program, That's The Law, on the VCY America network. He has testified on constitutional issues before the United States Congress. He has also testified on state and federal constitutional issues before the state legislatures of Nevada, South Carolina, and Washington. His views on constitutional law have received wide circulation among members of Congress, state legislatures and public policy advocates and organizations.
Mr. Titus has written numerous articles, book chapters and constitutional studies and analyses. He is the author of God, Man & Law: The Biblical Principle, a widely-acclaimed text on American common law. He has also produced Family to Family Forum, a seminar series featuring audio and video tapes, as well as printed materials, teaching the practical application of common law principles to current public policy issues.
Pro-life/pro-baby ping... (still without my ping list).
Let us not forget.... a "woman's" right to "choose" maynot be the woman's. More often than not, it is a man, parent, friend, that is making the "choice"!
" --- This is the very essence of the rule of law. No human institution has the final and supreme power to determine what the law is. Otherwise, the rule of law would be reduced to the rule of those who possess such final and supreme power."
He then goes on at length to establish, in effect, that fertilized human eggs are not seen as 'persons' under our rule of law, -- and concludes:
" -- Obviously, this problem could be resolved if Congress acted by declaring that human life begins at conception -- "
Thus, his conclusion contradicts his own previous argument: "-- No human institution [Congress] has the final and supreme power to determine what the law is. --"
Congress has never been granted the power to declare that human life begins at conception.
ping
ProLife Ping!
If anyone wants on or off my ProLife Ping List, please notify me here or by freepmail.
Please let me know if you want on or off my Pro-Life Ping List.
Pro-life/pro-baby ping...
Tell it to Ed.. I'm not the "States rights" gun control advocate around here. I argue with them every day at FR.
The place has become lousy with them.
My apologies. Must have misread your post.
bump
It's a human life NOT an exception and women DO suffer from abortions.
So, what do we do now, urge our congress to use Article III section 2 of the US Constitution to limit the scope of the SCOTUS or have them introduce a human life amendment?
Jurisdiction removal solves the problem with federal courts.
Each state decides just as they did prior to Roe v Wade. Justice Scalia has repeatedly stated that the Supreme Court has no business in this issue and it is a STATE matter. Amendment Jurisdiction removal
Removal of federal court jurisdiction Article 3, Section 2, Clause 2
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
See Federalist No. 81 for commentary
Life-Protecting Judicial Limitation Act of 2003 To provide that the inferior courts of the United States do not have jurisdiction to hear abortion-related cases.
In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts. http://www.washtimes.com/op-ed/20031006-085845-5892r.htm
There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter." http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=410&invol=113
In FT January 2003: Constitutional Persons Robert H. Bork made the following comments about Roe v. Wade:
"Blackmun invented a right to abortion....Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, ROE is impervious to logical or historical argument; it is what some people, including a majority of the justices, want, and that is that....Science and rational demonstration prove that a human exists from the moment of conception....Scalia is quite right that the Constitution has nothing to say about abortion."
For the history and thorough refutation of the Incorporation Doctrine, see the following: The Ten Commandments and the Ten Amendments: A Case Study in Religious Freedom in Alabama, 49 Ala. L. Rev.434-754 (1998)., Jaffree v. Board of School Commissioners of Mobile County (1983), Rehnquist's Dissent in Wallace v Jaffree (1985) ,Government by Judiciary: The Transformation of the Fourteenth Amendment, Second Edition, Raoul Berger, Forrest McDonald , Liberty Fund, Inc.; 2nd edition (June 1997), The Fourteenth Amendment and the Bill of Rights; The Incorporation Theory, Charles Fairman, Stanley Morrison, Leonard Williams Levy, Da Capo Press , January 1970
No human institution [Congress] has the final and supreme power to determine what the law is. --"
Congress has never been granted the power to declare that human life begins at conception.
The Avalon Project : Federalist No 78 It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186.
The Avalon Project : Federalist No 51 But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates
"After fertilization has taken place a new human being has come into existence. This is no longer a matter of taste or opinion. Each individual has a very neat beginning, at conception." Dr. Jerome Lejeune, genetics professor at the University of Descartes, Paris. He discovered the Down syndrome chromosome.
"From the moment a baby is conceived, it bears the indelible stamp of a separate distinct personality, an individual different from all other individuals." Ultrasound pioneer, Sir William Liley, M.D. 1967.
"It is scientifically correct to say that an individual human life begins at conception." Professor M. Matthews-Roth, Harvard University Medical School.
"By all the criteria of modern molecular biology, life is present from the moment of conception." Professor Hymie Gordon, Mayo Clinic.
"The question as to when a human being begins is strictly a scientific question, and should be answered by human embryologists — not by philosophers, bioethicists, theologians, politicians, x-ray technicians, movie stars, or obstetricians and gynecologists." http://www.l4l.org/library/mythfact.html
"The fusion of the sperm (with 23 chromosomes) and the oocyte (with 23 chromosomes) at fertilization results in a live human being, a single-cell human zygote, with 46 chromosomes — the number of chromosomes characteristic of an individual member of the human species." http://www.l4l.org/library/mythfact.html
"Scientifically, the international consensus of embryologists is that human beings begin at fertilization (or cloning)--i.e., when their genetic code is complete and operative; even before implantation they are far more than a "bunch of cells" or merely " potential human beings."" http://www.stemcellresearch.org/statement/
"The question as to when a human person begins is a philosophical question — not a scientific question. I will not go into great detail here, but ""personhood"" begins when the human being begins — at fertilization." http://www.l4l.org/library/mythfact.html This objective argument refutes all metaphysical speculations stating otherwise.
"Life begins like everything else, at the beginning. At the moment of fertilization, a new human life begins. The human embryo is a being; and being human, she is a human being. She is person and not property because no property has the property of building itself. Everything necessary to make the new human being-the entire blueprint necessary to build a human being capable of going to the moon and putting a foot on the moon-is there in the very beginning. Nothing is added after the moment of fertilization. It is all locked in. Not only the color of our hair and eyes but even how long we will live, accident or sickness not intervening, is there in the very beginning. The complete information necessary to build the new human being is written in the smallest subscript of the universe. We are fearfully and wonderfully made!" http://www.cbhd.org/resources/reproductive/palmer_1999-10-15.htm
Adopted unanimously June 12, 1776 Virginia Convention of Delegates drafted by Mr. George Mason: I
Robert C. Cannada, Senior Counsel, Butler, Snow, O'Mara, Stevens & Cannada, PLLC, Jackson, Missippi, "America's Choice: A Limited Government Or A Totalitarian Government," The National Lawyers Association Review, Winter 1996. "The National Lawyers Association takes the position that the practical effect of the legal connection or relationship between the Declaration and the Constitution is that the Constitution is to be interpreted in the light of the principles set forth in the Declaration.[...] The Preamble introduces and explains the purpose of The U.S. Constitution, and links it to The Declaration of Independence." NLA Review Winter 1996 - AMERICA'S CHOICE
"....all Men are created equal...endowed by their Creator with...unalienable Rights, that among these are Life....to secure these Rights, Governments are instituted...." The Avalon Project : Declaration of Independence, July 4, 1776
Preamble to the U.S. Constitution," We the People of the United States, in Order to....secure the Blessings of Liberty to...our Posterity, do ordain and establish this Constitution...." Founders' Constitution
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