Conservatives, Beware of Fred Thompson

He disappointed conservatives during his eight years in the Senate. Is there any reason to think this Washington insider and veteran trial lawyer would be any better as President?

The frustration of conservatives is understandable. Faced with the prospects of Rudy Giuliani, John McCain, or Mitt Romney as the next Republican presidential candidate, many are pinning their hopes on former Senator Fred Thompson of Tennessee. Could this actor-politician be the new Ronald Reagan?

This is the second time conservatives have pinned their hopes on Thompson. When he was first elected in the Republican sweep of 1994, he was seen then as the “new Reagan”—a charismatic movie star turned politician. Senate Majority Leader Bob Dole quickly picked Thompson to give the five-minute GOP rebuttal to President Clinton’s economic address, and no less than The New York Times swooned with its headline the next morning, “A Star Is Born.”

He turned out to be a shooting star—a dazzling flash in the sky, soon gone, not there dependably, night after night, like the Big Dipper. Or, as The Tennessean later put it, “A year ago [Thompson] looked like a rising star. Today he looks more like a fading comet.”

Rumors circulated that Thompson was lazy, uninterested in the daily grind that comes with being a Senator—and one can understand that Capitol Hill is a lot more tedious and less glamorous than a Hollywood movie lot. More important were Thompson’s failures of will and his lack of leadership on any legislation that would promote the conservative cause. Instead what little leadership we got from Thompson advanced the liberal Establishment agenda.

Failure of will: Charged with investigating the Clinton White House’s Asia fundraising scandal (“Asiagate”), Thompson managed to draw a tiny blood sample from Bill Clinton but little more. If he’s that ineffectual against an easy target like Bill Clinton at the height of his parade of scandals, why should we expect Thompson to be any more effective against, say, the other partner in the Clintons’ 20-year plan to rule the nation?

On the wrong side of the fence: The McCain-Feingold campaign finance bill, championed by Fred Thompson, is the only important piece of legislation where he played a major role. And that is not an accomplishment to be proud of as a conservative. In fact, now that he’s running for President, Thompson is trying to flip-flop on this issue. Well, he can run, but he can’t hide from his record.

Never mind that it was patently unconstitutional, as the courts are starting to declare. McCain-Feingold was also, from the beginning, a sham and a lie.

Its stated purpose—its claim to being a “reform”—was that it would take big money out of politics. Well, you can see how successful it’s been! The big corporate and union lobbies are more powerful than ever, and bored billionaires with nothing else to do are eyeing the Senate and the White House as the next trophies on their mantelpieces.

No, the real purpose of “reform” legislation like McCain-Feingold is to serve as incumbent-protection laws. Establishment politicians aren’t threatened by the K Street lobbyists: they feed off them. They are threatened by grassroots organizations that keep an eye on how they vote and pass that information on to their members.

From the National Rifle Association to the Sierra Club, from Right to Left, these groups call incumbents on the carpet. So the incumbents pass laws to restrict the activities of these groups.

McCain-Feingold, the most prominent recent addition to campaign regulations, does this by prohibiting these groups from broadcasting any issue ads that refer to specific candidates for federal office in the 30 days before a primary, or 60 days before a general election.

Why were those dates chosen? Because “that’s when people are most interested in the elections,” according to Congressman Martin Meehan (D-MA), one of the law’s most ardent supporters. In other words, McCain-Feingold and similar laws are intended to silence the voices of ordinary citizens who contribute to these organizations. And they are designed to do so at exactly the times when grassroots citizens can have the greatest impact.

The real purpose of McCain-Feingold-type laws is to silence your voice in the campaign process, by placing a gag on the organizations that represent you and your views. Such measures are the gravest threat to your free speech that exist today.

And who was the only other Republican Senator to join John McCain in pushing hard for this assault on your First Amendment free speech rights? Fred Thompson. Indeed, campaign finance “reform” was the only issue on which he seemed to show any passion.

Thompson was deeply involved in writing the law, lobbied for it among his fellow Republicans, and was even inclined to call it “McCain-Feingold-Thompson.” He and McCain were able to convince only five of their fellow Republicans in the Senate—but added to the Democrats, that was enough. “You were essential to our success,” Senator Russ Feingold (D-WI) told Thompson in a gushing thank-you note after passage of McCain-Feingold.

Fred Thompson viewed through the Goldwater Test and the Reagan Test for conservative leadership

The Goldwater Test: Senator Barry Goldwater became the first political spokesman for the conservative movement because, out of all the Republican politicians who claimed to be conservative in the 1950s, he and he alone was willing to confront the sitting Big Government Republican in the White House. President Eisenhower’s policies were “a dime store New Deal,” he said on the floor of the Senate. He spoke truth to power.

Well, again we have a Big Government Republican in the White House, and now it’s no longer a dime store New Deal—it’s a supersized Wal-Mart of a New Deal. The Republican welfare state is far worse than anything the Democrats achieved.

And what has been Fred Thompson’s response these past seven years as the GOP massively expanded the federal government? If he’s said anything to warn us about the direction of the Republican Party, he’s said it so quietly that nobody—not just us, nobody—has noticed. And by his silence he has become complicit.

The Reagan Test: Throughout the 1960s and 70s Ronald Reagan walked with conservatives. He was at our conservative functions, and not just at the head table—he mingled with us, listened to our concerns, and made it clear where he stood. Also, our conservative friends were all around him as he governed in California and then ran for President—people like Dick Allen, Ed Meese, Lyn Nofziger, Marty Anderson, Paul Laxalt, Judge Bill Clark…and the list goes on.

Where are the long-time conservative activists today around Fred Thompson? Not campaign consultants who sell themselves to the highest bidder at campaign auctions. No, dedicated and recognized conservative thinkers and activists who will work only for truly conservative politicians.

Go ahead, try and name one. And if conservatives were not part of his inner circle before he started running for the presidency, we cannot expect him to have conservatives in his inner circle if he gets elected. And in politics, personnel is policy.

When we look at the two politicians who are closest to Thompson—Howard Baker and Lamar Alexander—we can see very clearly why Fred will never be a conservative leader, much less a conservative hero.

Fred Thompson and Howard Baker are as intertwined as the two sides of a coin. Fred Thompson was Howard Baker’s campaign manager in his successful reelection campaign in 1972, after which the two were good ole’ Tennessee buddies. Senator Baker invited Thompson to move up north and be minority (Republican) counsel to the Senate Watergate Committee in its investigation of Richard Nixon.

Thompson, it is said, was the person who got Senator Baker to ask a Nixon aide: “What did the President know, and when did he know it?” The reply led to the discovery of the Nixon tapes, and that led to Nixon’s resignation. Almost sounds like something scripted in Hollywood or on the set of “Law and Order.”

Thompson and Baker are still good ole’ buddies today, with Baker urging Thompson to make this run for the presidency and playing a key role in its unfolding. Officially or unofficially, we could expect Howard Baker to play a key role in a Thompson White House.

And who, you ask, is Howard Baker? You belie your age, of course, by asking that, but even old folks may be excused for a little fuzziness on this matter. Well, Howard Baker was one of the chain of leaders of the liberal (Big Government) wing of the Republican Party. The order of succession was Nelson Rockefeller-Howard Baker-George H. W. Bush-George W. Bush. Because he never got to the White House as its #1 or #2 occupant, Howard Baker has sort of faded into history, but he was important in his heyday—and on the opposite side of the ideological fence from conservatives.

As Republican leader of the Senate, Howard Baker worked with President Carter to turn the Panama Canal over to the drug-running Panamanian dictatorship. He voted to spend taxpayers’ money for abortions. As a candidate for the Republican presidential nomination in 1980, he said Reagan’s proposed tax cuts were “a riverboat gamble.” You get the picture. And this guy is still Fred Thompson’s closest advisor.

As for Senator Lamar Alexander (who’s up for reelection in 2008), he’s cut from the same cloth as Baker and Thompson—talk conservative but act like a “moderate” (i.e., liberal); above all, avoid sharp ideological confrontation with the Democrats. “The conservatism he exemplifies…,” wrote Jonathan Rauch in Reason magazine, “is no longer a program. It is a style of talking.”

Like Thompson, Lamar Alexander got his first job in Washington from Howard Baker; and when Thompson dropped out of the Senate in 2002 to return to lobbying, trial lawyering, and show biz, Alexander replaced him.

But you don’t have to take my word for it, because Fred Thompson passes the Sally Quinn Test

Fred Thompson may get an F on the Goldwater Test and an F on the Reagan Test, but he gets an A on the Sally Quinn Test. And that tells us a lot.

Sally Quinn is a noted writer and the wife of Ben Bradlee, long-time editor of the Washington Post. You can’t get more to the center of the Liberal Establishment in Washington than this power-couple. And on June 26, 2007, she penned a telling bombshell in the Post on Fred Thompson.

Vice President Dick Cheney is “toxic” and “has the potential to drag down every member of the party—including the presidential nominee—in next year’s elections,” she advises, so the movers and shakers in the GOP must convince President Bush to force Cheney to resign.

“Until recently, there hasn’t been an acceptable alternative to Cheney…,” she admits. “Now there is.” (And by now you can guess who.)

“Everybody loves Fred,” gushes Sally. “He has the healing qualities of Gerald Ford and the movie-star appeal of Ronald Reagan. He is relatively moderate on social issues. He has a reputation as a peacemaker and a compromiser. And he has a good sense of humor. He could be just the partner to bring out Bush’s better nature…”

I had never known Sally Quinn to be so concerned before about the fortunes of the Republican Party, and I am shocked that she allows for even the possibility of a “better nature” in President Bush. Be that as it may, we can see what’s going on here. She rightfully sees Fred Thompson as a marshmallow—oops, I mean “peacemaker” and “compromiser.” As the sitting Vice President in 2008, he would have the inside track on getting the GOP nomination. And liberals could rest easy, knowing their power is safe whether the Democrat or the Marshmallow Republican wins in 2008.

I have examined Fred Thompson’s eight-year record as a Senator in detail, utilizing the vote ratings of the American Conservative Union (ACU) at www.acuratings.org. He emerges not as an out-and-out liberal, but not as a principled conservative either.

Fred Thompson’s record may appear to be “conservative,” but only by comparison with Rudy Giuliani, John McCain, or Mitt Romney, and a Less-of-a-Big Government Republican is still a Big Government Republican. And given his lack of conservative leadership as a Senator, it would be a grave mistake to expect conservative leadership from him as President.

For six of his eight years as a Senator, Thompson ranked in the bottom half of Republican Senators in terms of his commitment to conservatism. What makes this more remarkable is that he served as a Senator from Tennessee, winning his two elections by hefty margins. He didn’t have the excuse that his electorate was liberal, like the electorates of RINO Senators from Oregon, Maine, or Rhode Island. He had a safe seat with a conservative electorate. So when he voted liberal, we have to assume it’s because that’s what he believed.

Conservatives who look to Thompson for salvation need to pause and consider his record—a record that includes these votes:

♦ FOR restricting the rights of grassroots organizations to communicate with the public. See ACU’s vote 3, 1998.

♦ FOR allowing the IRS to require political and policy organizations to disclose their membership—a vote against the constitutional rights of free association and privacy. (The Clinton Administration used such IRS intimidation against conservative groups that opposed them.) See ACU’s vote 11, 2000.

♦ AGAINST impeachment proceedings against President Clinton, specifically the reappointment and reauthorization of managers (drawn from the Republican membership of the House Judiciary Committee) to conduct the impeachment trial in the Senate. See ACU’s vote 1, 1999.

♦ AGAINST an accelerated elimination of the “marriage penalty.” See ACU’s vote 10, 2001.

♦ FOR handouts to politicians, specifically taxpayer funding of presidential campaigns. See ACU’s vote 6, 1995.

♦ FOR handouts to politicians, specifically congressional perks such as postage and broadcast time funded by taxpayers. See ACU’s vote 13, 1996.

♦ AGAINST restraints on federal spending, specifically the Phil Gramm (R-TX) amendment to limit non-defense discretionary spending to the fiscal 1997 levels requested by President Clinton. See ACU’s vote 6, 1997.

♦ FOR the Legal Services Corporation, the perennial liberal boondoggle that provides political activism disguised as “legal services” to Democratic constituencies. See ACU’s vote 16, 1995, and vote 17, 1999.

♦ FOR an increase in the minimum wage, which, of course, increases unemployment among the young and poor. See ACU’s vote 16, 1996.

♦ FOR President Clinton’s nomination of Dr. David Satcher as U.S. Surgeon General. Among other things, Satcher opposed a full ban on partial-birth abortion. See ACU’s vote 1, 1998.

♦ FOR open-ended military commitments, specifically in regard to U.S. troops in Kosovo. See ACU’s vote 8, 2000.

♦ FOR corporate welfare, specifically the Overseas Private Investment Corporation (OPIC). See ACU’s vote 23. 1999.

♦ AGAINST worker and shareholder rights, specifically the Hatch (R-UT) amendment to require unions and corporations to obtain permission from dues-paying members or shareholders before spending money on political activities. See ACU’s votes 4 and 5, 2001.

♦ AGAINST property rights and FOR unlimited presidential power, specifically by allowing President Clinton to implement the American Heritage Rivers Initiative, which he established by executive order, without congressional approval. See ACU’s vote 20, 1997.

♦ FOR restricting the First Amendment (free speech) rights of independent groups. See ACU’s vote 23, 1997.

♦ FOR the trial lawyers lobby, and specifically against a bill that would put common-sense limitations on the medical malpractice suits that increase health costs for all of us. (Of course! He’s been a trial lawyer himself for some three decades.) See ACU’s vote 18, 2002.

♦ FOR limitations on campaign freedom of speech, by limiting contributions to national political parties to $2,000 and limiting the rights of individuals and groups to participate in the political process in the two months before elections. See ACU’s vote 7, 2002.

There you have it. The actor who talks like a tough conservative has, in his real political life, voted in all these ways to increase the power of the federal government, limit the rights of taxpayers and individual citizens, and shut grassroots activists out of the political process.

There’s a lot of confusion about where Fred Thompson stands on the abortion issue.

During his Senate years, the Memphis Commercial Appeal described him as “basically pro-choice on abortion,” The Tennessean described him as “a pro-choice defender in a party with an anti-abortion tilt,” and National Review deemed him to be “pro-choice.”

Yet his voting record as a Senator was solidly pro-life, earning him high marks on pro-life voting records and bottom-of-the-barrel ratings from abortion groups like Planned Parenthood. Leaders of social conservative groups like the Family Research Council, Christian Coalition, Concerned Women for America, and the Eagle Forum have had praise for his social-issues record.

How can this be? How can the conservative National Review and Tennessee’s leading newspapers describe him as “pro-choice” when his voting record is the opposite? The confusion results largely because Thompson takes—to use one of Washington’s favorite words—a “nuanced” position on abortion, and then sometimes compounds the confusion with conflicting statements. In addition, his role as a Washington Insider—a Washington lobbyist—raises disturbing questions that have not been answered satisfactorily by Thompson.

One of Fred Thompson’s deepest held political convictions is his belief in federalism—that the federal government should stick to the powers granted it in the Constitution, leaving everything else to the states or the people. That’s great--if he actually voted as a federalist on the host of issues ranging from presidential power to education. The one area where he does take a pretty consistent federalist position, however, is on the abortion question.

“I’ve always thought that Roe v. Wade was a wrong decision,” Thompson says, and “that they usurped what had been the law in this country for 200 years, that it was a matter that should go back to the states. When you get back to the states, I think the states should have some leeway.”

Because he believes abortion essentially should be a state matter, not a federal matter, Thompson has voted repeatedly against federal funding of abortion in Department of Defense facilities and says he opposes public financing of abortions for low-income Medicaid recipients. The same federalist reasoning, however, is presumably what also leads him to oppose (in a Christian Coalition questionnaire) a constitutional amendment “protecting the sanctity of human life” as well as federal legislation “protecting the sanctity of human life.” I say “presumably” because Fred Thompson himself has never really explained his seemingly conflicted statements and positions on abortion in a comprehensive and logical way.

Thompson is not against abortion per se, since he says he doesn’t know whether life begins at conception. At least that was the position he took before he started running for President.

“I’m not willing to support laws that prohibit early term abortions,” he told the Conservative Spectator, a Tennessee newspaper, in 1994. “It comes down to whether life begins at conception. I don’t know in my own mind if that is the case so I don’t feel the law ought to impose that standard on other people.” “The ultimate decision on abortion should be left with the woman and not the government,” he told another newspaper. And in his Christian Coalition questionnaire, he penciled in: “I do not believe abortion should be criminalized. This matter will be won in the hearts and souls of the American people.”

Note that when he explained why he opposes Roe v. Wade on federalism grounds, he ended up saying: “When you get back to the states, I think the states should have some leeway.” “Leeway” obviously is code for “the states should allow some abortions.”

Thompson has, however, voted consistently against partial birth abortion. There’s no doubt that life has started in those late-term situations.

Fred Thompson the “conservative” politician vs. Fred Thompson the pro-abortion lobbyist

New information uncovered by the Los Angeles Times indicates that Thompson has lobbied on behalf of an abortion rights organization.

The official minutes of the National Family Planning and Reproductive Health Association (NFPRHA) document that the group hired Thompson in 1991 to try to influence the George H. W. Bush Administration to loosen the restrictions that prevented federal funding from going to clinics that engage in abortion counseling.

Thompson’s support for federal funding of abortion is vividly recalled by the President of the NFPRHA, Judy DeSarno; the Director of Government Relations, Sarah Szanton; and a member of the Board of Directors, Susan Cohen.

To be fair, Bush’s Chief of Staff, John Sununu, has denied ever talking to Thompson about abortion. That may mean that Thompson either spoke to other officials in the White House or took the NFPRHA’s money and did nothing for them.

He would personally rejoice if the Supreme Court overturned Roe v. Wade, at least according to some of his statements on abortion. For the sake of argument, let us grant him that sentiment. But if vacancies occur in the court during his presidency, would he have the fortitude to nominate and fight for judges who share his federalist sentiments and on that basis vote to overturn Roe v. Wade? And would he do so particularly if he faced a Democratic Senate and House of Representatives, as seems likely?

Nothing in his past suggests that he would fight. The Nelson Rockefeller/Howard Baker/Poppy Bush wing of the party, of which Thompson is an integral part by virtue of the umbilical cord between Thompson and Baker, has always believed in accommodation rather than confrontation. You accommodate the Democrats, as Thompson himself did in his “Asiagate” investigation, and you can bet your entire rainy-day fund that the Democrats won’t accommodate a Supreme Court nominee who might overturn Roe v. Wade. Accommodation on this issue is a one-way street. Any accommodation would be done by President Thompson.

As far as other abortion-related politicking is concerned, there is nothing to suggest that abortion is a key issue anywhere near the top of Fred Thompson’s “to do” list. “We need to concentrate on what brings us together and not what divides us,” was Senator Thompson excuse, as told to The Tennessean. And later, when a pro-abortion group needed a Republican Insider to represent its views at the White House, we now know—from the minutes of the group’s meetings—who they turned to: Washington lobbyist Fred Thompson.

In short, a President Thompson would give pro-life conservatives some supportive rhetoric but little action. So what else is new?

Fred Thompson was a key architect of one of the worst pieces of legislation in recent years—the speech-muzzling McCain-Feingold campaign finance law.

Fred Thompson cast votes in the Senate that increased the power of the federal government, limited the rights of taxpayers and individual citizens, and sought to shut grassroots activists out of the political process.

Fred Thompson fails the Goldwater Test with a grade of F: He did not speak out against the Republican Big Government rampage of the past seven years.

Fred Thompson fails the Reagan Test with a grade of F: He has never walked with us or surrounded himself with conservatives or fought our fights.

Fred Thompson has instead been a protégé of one of the icons of liberal Republicanism, Howard Baker, who continues to be his key advisor.

Fred Thompson plays a tough guy in the movies and on television, but in real life he is a marshmallow who would pose no threat to the Big Government Establishment that continues to dominate Washington.

Fred Thompson is, in fact, a Washington insider and part of that Big Government Establishment through his eight years as a go-along Senator and even more years as a trial lawyer and Washington lobbyist.

For the past year, I have been preaching to conservatives that we should not align ourselves with those who have fatal flaws from a conservative perspective. The imminent entrance of Fred Thompson in the race doesn’t change a thing, for the reasons I have demonstrated here.

Conservatives, let’s keep our powder dry. The GOP has taken us for granted in supporting their political agenda. Conservatives should make candidates come to us, and let’s make them prove that they are worthy of our support.

If America had listened to this man in 1972, 50 million Americans, and their children, would be alive, instead of butchered and dead.

Judge Adrian Burke:

Robert M. BYRN,
as Guardian ad Litem for an Infant “Roe”, an Unborn Child,
and All Similarly Unborn Infants, Appellant,

NEW YORK CITY HEALTH & HOSPITALS CORPORATION et al., Respondents,

Court of Appeals of New York

Argued May 30, 1972
Decided July 7, 1972

BURKE, Judge (dissenting).

As I stated in Robin v. Incorporated Vil. of Hempstead (30 N Y 2d 347, 352) chapter 127 of the Laws of 1970 is not a valid exercise of legislative power. The majority opinion states the issue as: “whether the law should accord legal [p892] personality is a policy question* which in most instances devolves on the Legislature, subject again of course to the Constitution as it has been ‘legally’ rendered”.

This argument was not only made by Nazi lawyers and Judges at Nuremberg, but also is advanced today by the Soviets in Eastern Europe. It was and is rejected by most western world lawyers and Judges because it conflicts with natural justice and is, in essence, irrational. To equate the judicial deference to the wiseness of a Legislature in a local zoning case with the case of the destruction of a child in embryo which is conceded to be “human” and “is unquestionably alive” is an acceptance of the thesis that the “State is supreme”, and that “live human beings” have no inalienable rights in this country. The most basic of these rights is the right to live, especially in the case of the “unwanted” who are defenseless. The late Chief Judge Lehman once wrote of these rights: “The Constitution is misread by those who say that these rights are created by the Constitution. The men who wrote the Constitution did not doubt that these rights existed before the nation was created and are dedicated by God’s word. By the Constitution, these rights were placed beyond the power of Government to destroy.” In other words, what the Chief Judge was saying was that the American concept of a natural law binding upon government and citizens alike, to which all positive law must conform, leads back through John Marshall to Edmund Burke and Henry de Bracton and even beyond the Magna Carta to Judean Law. Human beings are not merely creatures of the State, and by reason of that fact, our laws should protect the unborn from those who would take his life for purposes of comfort, convenience, property or peace of mind rather than sanction his demise. Moreover, if there is a confiscation of property through a zoning law, it is “constitutionally” invalid. Recently, the United States Supreme Court held that the taking of a life of a murderer by a State was constitutionally invalid, and in the words of one Justice, was found to be “immoral and therefore unconstitutional” (Furman v. Georgia, 408 U.S. 238, 364-366 [Marshall, J., concuring]).

The Attorney-General argues that the legislative determination in choosing between the competing values involved herein is a value judgment committed to the legislative process of government, not to the discretion of the judiciary. Furthermore, it is argued that there is a legitimate State interest in a woman’s right of privacy and in the undesirable effect of unwanted children upon society. (See Lexogram, Vol. 4, No. 10.) Upon scrutiny, these arguments are not persuasive, and the legislation cannot stand for two reasons — it is irrational and unconstitutional.

The irrationality of the legislation in question has several aspects. In view of modern and reliable contraception devices, there is no reason for unwanted conceptions to take place that would cause an exceptional population growth. Secondly, the argument that these unborn children are unwanted is fallacious as there are many, many families presently interested in adoption, who would be more than happy to welcome such an infant into their home. Thirdly, as we reach zero population growth, there is no compelling State interest to support the abortion legislation. Additionally, two other frequently raised arguments by proponents of abortion cannot withstand scrutiny. Thus, the plaint regarding women dying from botched abortions under the old law is easily answered. Examples of due justice for foetuses are more merciful than the unbounded exercise of pity for those few unfortunate pregnant women who fall into the hands of the few inexpert doctors. Thousands of illegal [p893] abortions were performed in New York City hospitals under the old law without fatalities but with serious side effects. To overcome this self-created problem by destroying hundreds of thousands of foetuses by State law is uncivilized. At best, a few human beings are only possibly wholly preserved from a fate set in motion by themselves at the sacrifice of hundreds of thousands and soon millions of other human beings. Nor can the old abortion law be said to be an interference with a physician’s right to practice his profession. The old abortion law sanctioned therapeutic abortion when medically indicated, thus enabling the physician to save the life of the mother in extreme circumstances.

The more telling fact than the present legislation’s irrationality is its unconstitutionality. The unconstitutionality stems from its inherent conflict with the Declaration of Independence, the basic instrument which gave birth to our democracy. The Declaration has the force of law and the constitutions of the United States and of the various States must harmonize with its tenets. The Declaration when it proclaimed “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” restated the natural law. It was intended to serve as a perpetual reminder that rulers, legislators and Judges were without power to deprive human beings of their rights.

Unless there had been a Thomas Jefferson who was educated by a philosophy professor to know the primacy of the natural law — there would be no United States of America. For, if the Declaration had been written by a pragmatist for expedient reasons we never could have enlisted the sympathies and agreement of such a large part of the then world, including members of the British Parliament in our righteous cause. They would know the pragmatic reasoning would be nothing more than pettifoggery, and had no basis in law.

We began our legal life as a Nation and a State with the guarantee that these were inalienable rights that come not from the State but from an external source of authority superior to the State which authority regulated our inalienable liberties and with which our laws and Constitutions must now conform. That authority alone establishes the norms which test the validity of State legislation. It also tests the Constitutions and the United Nations Convention against genocide which forbids any Nation or State to classify any group of living human beings as fit subjects for annihilation. In sum, there is the law which forbids such expediency. It is the inalienable right to life in the nature of the child embryo who is “a human” and is “a living being”.

Inalienable means that it is incapable of being surrendered (Webster’s Third New International Dictionary). Thus, the butchering of a foetus under the present law is inherently wrong, as it is an illegal interference with the life of a human being of nature.

The report of the Governor’s commission explanation that it was not dealing with “morality” but only law, overlooked the fact that it turned its back on the law — the natural law reiterated in the Declaration of Independence. The reasons given for the enactment of the present abortion law are irrational from a medical, scientific and factually objective analysis. There is no need for abortion except in very limited medical circumstances.

Chapter 127 of the Laws of 1970, authorizing abortion “on demand” is a resort to expediency which is recognized everywhere as the death of principle. The rationale of the majority opinion admits that customs do change and the Legislature could, if it should in the future be the attitude of the Legislature, do away with old folks and eliminate the great expense the aged are to the taxpayers. This, of course, would parallel the Hitler laws which decreed the death of all the inmates of mental hospitals and also decreed that for [p894] many purposes non-Aryans were nonpersons.

Chief Judge Lehman’s understanding of inalienable rights is the only understanding that makes any sense out of the Declaration of Independence, the Magna Carta, the Bill of Rights and the United Nations Convention against genocide.

According to the majority opinion, valid law is a merger of legislative and executive emotions, whims and hunches — announced today and perhaps changed tomorrow. One’s rights are never permanent as the existence of the natural law is denied. The majority suggests that all law is man made. Such a philosophy of law we know would not attract persons educated in philosophy. Others, however, are attracted by pragmatism. This is just as dangerous as expediency because certain individuals think: we are realistic and self-sufficient — this legislation will control population growth and assist the taxpayers.

This pragmatism, of course, is masked by a contrived theory exemplified in Abele v. Markle (342 F. Supp. 800) of giving the right of privacy of the woman an absolute paramountcy over the inalienable right of the foetus to life. On that false and unsupported premise (as I shall point out later) it then cites Griswold v. Connecticut (381 U.S. 479). That citation is inapposite. Here there are three people with different interests involved. The man, the woman and the foetus. The foetus has the superior “right to life” rather than the particular female’s or male’s concern to avoid responsibility. The proponents of abortion know that there are men who desire offspring for the joy as well as the responsibility they bring. The protection of the foetal life has been the concern of law givers even before the judicial Law of Moses, the great law giver (the Ten Commandments) down through the ages. Even in barbaric ages this was the law (see de Bracton, Sir Matthew Hale, Fleta, Sir Edward Coke, Sergeant Hawkins, Sir William Blackstone).

Under New York State law the foetus, if it is born, is entitled to posthumously share in a deceased husband’s intestate estate. This legislation gives the “right” to the wife to unilaterally, through abortion, appropriate the husband’s entire estate by preventing offspring and depriving the legally wedded husband of transmission of his blood line, name and properties to “flesh of his flesh”: another inalienable right.

The proponents of abortion take refuge in concocted distinctions as to what living human beings are persons and what living human beings are not persons -to justify the massacre of the innocents, over 400,000 in New York State this year. They belittle Chitty, Coke and twist the statements of Hale to try to persuade those who, as did the author of the Declaration of Independence, recognize that the natural law granted inalienable rights to human living beings. They demand that the natural law expressed in the Declaration of Independence on which the United States is founded, should be ignored for expedient reasons. The pragmatists have a remarkable capacity for bearing the suffering of others with equanimity so long as the suffering is not imposed on them. They are just as callous toward their fellow human beings (they all started as foetuses) as the parents who slaughtered their children in the earlier centuries. In that age parents engaged in wholesale slaughter of children for the same expedient reasons dictating this legislation, which is forbidden by the natural law (see P. Pringle, Hue and Cry, William Morrow and Company, Great Britain).

In view of the myriad methods of contraception now approved and fully utilized by females of all ages, the pronouncement in Abele v. Markle (342 F. Supp. 800, supra) that women after conception have the unquestioned right to make the sole decision to abort is contrary to the State’s responsibility to preserve and protect life. (Furman v. Georgia, 408 U.S. 238, 364-366, supra.) The contraception [p895] methods available today if used are more than sufficient to control population growth. Witness the fact that we have already reached zero population growth and possibly gone below it. The complete disrespect for the foetus’ right to life is in keeping with the cruelties which antedated the age of the lawmakers of Judaism, and certainly is a return to the barbarism of the English people of the early centuries (see P. Pringle, Hue and Cry, supra).

There is no medical or scientific doubt that foetuses are a group of human beings not a part of his or her mother. Every respected doctor, specializing in this field, treats the unborn child as a second patient different and individually distinct from the mother. Unless we intend to indorse the totalitarian philosophy already practiced of destroying the elderly, the insane, the newly born defective child or other groups of “lesser quality” as defined by the “state”, scrap the Declaration of Independence, distort the meaning of the Fifth and Fourteenth Amendments, we should find this legislation constitutionally invalid.

The Appellate Division arrived at the obvious contradiction that even though the foetus is a human being with “a separate life from the moment of conception”, it need not be considered a person under the Fifth Amendment. Again the Appellate Division adopted the theory that the State is supreme and free to degrade the inalienable rights of human beings which were not given to them by the State and cannot be diminished nor taken away by the State. The Appellate Division and the majority agree that the “state”, as in Nazi Germany, could decide what human beings are persons or nonpersons. Human beings are not created by any woman unilaterally — only with the aid of viable semen. Men and women can have intercourse thousands of times and fail to create a foetus. The woman and the man, not only the State, are obliged to recognize the inalienable rights that issue out of the uncontroversial factors flowing out of one’s humanity. There is the sanctity of human life. To pass a law authorizing foetuses’ destruction is akin to establishing a State religion which conflicts with the rights given to those conceived in our democracy. To state that the present law does not violate the freedom of conscience of those who believe abortion to be a crime while the public revenues and public institutions are used is to resurrect the disgraceful argument that the citizens of Nazi Germany knowing of the death camps had an individual freedom of conscience to shrug off the atrocities of Dachau, Auschwitz and the other death camps. The question answers itself once we look at that society under Hitler.

The deeper disease in this legislation is the widening gap between the American self-image of a country that values human life and the reality of a growing preoccupation of the hedonists with a competitive drive for La Dolce Vita. Because some women of means have practiced abortion for years without regard for the then existing laws or the consequences apart from death is no reason to legalize it and conduct a campaign among the poor to convince them that philosophically and biologically they can consider an unborn child as one not a distinct human being with an individual right to life.

The Presidential Commission on Abortion fails to distinguish between an unwanted and unplanned birth and unwanted children. Adoptive agencies all over the United States have long waiting lists of prospective parents eager for a baby. But there are no babies to adopt. Every baby in the United States being aborted because of an alleged belief that the infant is unwanted is being denied life on the basis of an untruth. Our society has for ages allowed the woman to discontinue a responsibility for the developing human organism when that organism has reached a stage of development at which this responsibility can be transferred to another. The argument in Abele v. Markle (342 F. Supp. 800, supra) completely evades this option and relies entirely on the concept that a woman’s [p896] body is “private property” to be used as she wishes without interference from the inalienable rights of the unborn which was created when she chose to use her body in conjunction with the body of a man. I remind you that the woman’s body, her “private property”, cannot unilaterally create a foetus — nor can the body of a man. Incidentally if it is “private property” public funds cannot be constitutionally directly or indirectly used by hospitals to dispose of the foetus. The premise relied on by the courts and the Legislature is a false premise because the issue is not whether the woman has a right to use her body as she wishes (of course she has and does) but rather, if perchance another human being is conceived, that human being has an inalienable right to life that neither she, nor the man, nor any State, has the legal power to destroy.

As long as the proponents of abortion, all of whom I assume condemn genocide, have no rational reason to refuse to assign the same principle of natural law to abortion as they do to genocide, they are inconsistent.

To sum up, conception can be legally avoided — adoption opportunties are enormous — abortion legislation except in rare medical cases is neither necessary, humanly acceptable, legal nor constitutional.

The fundamental nature of life makes impossible a classification of living, human being as nonpersons, who can be excluded from the protection of the Constitution of the United States so that their right to life can be taken from them in spite of the due process clause and equal protection clause.

Such a classification is constitutionally suspect. The relationship between the classification excluding this human group of foetuses from the enjoyment of the right to life and the fabricated purposes for which the classification is made are so imperfect that it follows that the classification is clearly unconstitutional.

For instance, this abortion legislation gives the woman the right without the knowledge of the man to destroy the foetus who has, under the New York State law, the right of inheritance for devolution of property if the father dies intestate. By this act the woman, if she should be the wife, would increase her share in the intestate estate by confiscating the inheritance rights of the foetus.

In answer to the concurring opinion of Judge Jasen, which was filed after this opinion, I merely add that there can be no debate or value judgment when the operating doctors and their nurses examine the bucket in the operating room. They should know they have destroyed living human beings, the remains of which are in the bucket. If they rely on the opinions of the self motivated, they should examine the exhibit at the Smithsonian Institute. The United Press International recently reported the birth of a foetus at 21 weeks in a New York hospital. Was it “less-than-human”?

Accordingly the order of the Appellate Division should be reversed and chapter 127 of Laws of 1970 be declared unconstitutional.

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