"Facts are stubborn things; and whatever may be our wishes, our inclination, or the dictates of our passions, they cannot alter the state of facts and evidence."
John Adams
Judge Adrian Burke:
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.
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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...
31 N.Y.2d 194
335 N.Y.S.2d 390
286 N.E.2d 887
Robert M. BYRN,
as Guardian ad Litem for an Infant "Roe", an Unborn Child, and All Similarly Unborn Infants, Appellant,
v.
NEW YORK CITY HEALTH & HOSPITALS CORPORATION et al., Respondents,
Court of Appeals of New York
Argued May 30, 1972
Decided July 7, 1972