Posted on 11/26/2002 1:06:24 PM PST by Remedy
My difference with Roe v. Wade is a legal rather than a moral one: I do not believe . . . that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would—and could in good conscience—vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter. . . . The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so. . . . the Court should return this matter to the people—where the Constitution, by its silence on the subject, left it—and let them decide, state by state, whether this practice should be allowed.
This is it! This is what I have been saying for years. The best argument against what the SCOTUS has done in Roe, etc., is to be found in the TENTH Amendment, not the Fourteenth. The SCOTUS had no constitutional power to take away the States' "right to choose" to have laws against abortion. To be sure, abortion is also a moral question, very much so. But from a constitutional perspective, this is the best road to go.
I have always thought it was one of the most important rights.
The Tenth Amendment to the Constitution says that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
You could also use the Ninth Amendment.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
If you read the Court decision in Roe v Wade the Justices made no mention of either the Ninth or the Tenth Amendments.
Haven't had time to read the discussion on the thread, too much chatter, and am holding a newborn at the moment.
patent
Ever wonder why the pro-abortion Left is so upset by polygamy? What happens if JUST ONE polygamist woman claims her "right to choose" ???
Ever know of any polygamists who weren't pro-life?
Overturning Supreme Court Decisions with Constitutional Amendments
The Supreme Court's power of judicial review allows the court the power of interpreting the Constitution and determining whether any act of the Congress, the executive, or the state governments is in violation of the Constitution. Four of the twenty-seven amendments to the Constitution have overturned Supreme Court decisions. Two other proposed but unratified amendments also sought to overturn decisions of the Supreme Court.
Proposing an amendment to the Constitution of the United States with respect to the right to life. (Introduced in House)
HJ 20 IH
107th CONGRESS
1st Session
H. J. RES. 20
Proposing an amendment to the Constitution of the United States with respect to the right to life.
IN THE HOUSE OF REPRESENTATIVES
Mr. OBERSTAR (for himself, Mr. AKIN, Mr. ARMEY, Mr. BAKER, Mr. BARCIA, Mr. BARTLETT of Maryland, Mr. DEMINT, Mr. GREEN of Wisconsin, Ms. HART, Mr. HAYES, Mr. HULSHOF, Mr. LIPINSKI, Mr. LUCAS of Kentucky, Mr. PICKERING, Mr. SHIMKUS, Mr. SHOWS, Mr. TANCREDO, and Mr. TERRY) introduced the following joint resolution; which was referred to the Committee on the Judiciary
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States with respect to the right to life.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein),
That the following article is proposed as an amendment to the Constitution of the United States, to be valid only if ratified by the legislatures of three-fourths of the several States within seven years after the date of final passage of this joint resolution:`SECTION 1. With respect to the right to life, the word `person' as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States applies to all human beings irrespective of age, health, function, or condition of dependency, including their unborn offspring at every stage of their biological development.
`SECTION 2. No unborn person shall be deprived of life by any person: Provided, however, That nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother.
`SECTION 3. The Congress and the several States shall have power to enforce this article by appropriate legislation.'.
The EagleCross Alliance is making preparations to send this legislative proposal to all pro-life members of the House and Senate. We will include a list of other individuals, churches and organizations that support this proposal, and we would like to invite everyone to add their name to the list.
THE CONSTITUTIONAL RIGHT TO LIFE ACT OF 2001
To protect the right to life of each born and preborn human person in existence at fertilization.
January 21, 2001
The EagleCross Alliance and other individuals, churches and organizations (Attachment 1) propose the following bill to be introduced in the Congress
A BILL Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE
To protect the right to life of each born and preborn human person in existence at fertilization.
This Act may be cited as the `The Constitutional Right to Life Act of 2001'. SEC. 2. FINDINGS.
The Congress finds that-
(1) we, as a Nation, have declared that the unalienable right to life endowed by Our Creator is guaranteed by our Constitution for each human person;
(2) the Fourteenth Amendment to the Constitution states that no State shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws;
(3) the Fifth Amendment to the Constitution states that no person shall be deprived of life, liberty, or property, without due process of law;
(4) a human father and mother beget a human offspring when the father's sperm fertilizes the mother's ovum, and the life of each preborn human person begins at fertilization;
(5) there is no justification for any Federal, State, or private action intentionally to kill an innocent born or preborn human person, and that Federal, State, and private action must assure equal care and protection for the right to life of both a pregnant mother and her preborn child in existence at fertilization;
(6) Americans and our society suffer from the evils of killing even one innocent born or preborn human person, and each year suffer the torture and slaughter of an estimated 1,500,000 preborn persons;
(7) the violence of intentionally killing a preborn human person has provoked more violence, carnage, and conflict reaching into homes, schools, churches, workplaces and lives of Americans;
(8) the sanctioning of abortion in America sends a message to our nation's youth that human life is not sacred, and this message is largely to blame for the recent outbreaks of casual violence and killings committed by children;
(9) the Supreme Court has no legislative authority, but can only render an opinion, and that opinion does not undermine the laws of God or even the Constitution of the United States;
(10) the Supreme Court, in Roe v. Wade (410 U.S. 113 at 159), stated: `We need not resolve the difficult question of when life begins . . . the judiciary at this point in the development of man's knowledge, is not in a position to speculate as to the answer. . .';
(11) the Supreme Court, in Roe v. Wade (410 U.S. 113 at 156-157), stated: `If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life is then guaranteed specifically by the [Fourteenth] Amendment. . .';
(12) the Supreme Court, in Roe v. Wade stated that the privacy right is not absolute, and stated (410 U.S. 113, at 159) that: `The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus. . . . The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.';
(13) Roe v. Wade is not a law, it is a court decision. Since it was rendered by a court (in this case the Supreme Court) and not the Congress, it can not be a law at all, even less the "law of the land." It is a court decision that, at most, is only binding on the parties of that single court case. SEC. 3. CONSTITUTIONAL RIGHT TO LIFE
Upon the basis of these findings and in the exercise of duty, authority, and powers of the Congress, including its power under Article I, Section 8, to make necessary and proper laws, and including its power under section 5 of the 14th article of amendment to the Constitution of the United States, the Congress hereby declares that the right to life guaranteed by the Constitution is vested in each human being at fertilization.
Pro-Life Principles II: The Right-To-Life Amendment
Timothy D. Terrell
July 30, 2002
Chalcedon Report
The framers of our federal government understood (more clearly than we) the sinful nature of man and the importance of keeping rulers accountable for their actions. No one person, or legislative body, was entrusted with unconstrained power. At the federal level, the framers were particularly wary of the dangers of consolidating too much power in a remote, centralizing authority. Therefore, the republic was originally set up with a relatively decentralized form of government. The plain reading of the Constitution and the Bill of Rights suggests that the roles of the federal government were few and carefully limited. Essentially, the federal government was only to perform those functions that the states had struggled to perform on their own. Most powers remained with the states, and in the nation's first few decades, the state government would have been much more important to the ordinary citizen than the federal government. Today, of course, state governments have been reduced to something like regional administrative offices.
There is no law against murder in the Constitution-that is not the purpose of that document, or even of the federal government. The Constitution of the United States leaves criminal law to the states, and was never intended to make all crimes into federal issues. Any prohibition against abortion ought to be a state concern, just as prohibitions against any form of murder are state concerns. Pro-lifers who want to use a federal instead of a state route to ending abortion are undermining the intent of the original Constitution.
Some might protest that it is necessary to use whatever political means are necessary to end abortion, even if that means making use of governmental powers that we would not advocate in other circumstances. While the awfulness of abortion may seem to dictate exceptional measures, we forget that unleashed civil governments have perpetrated worse atrocities. Today most Americans find it hard to believe that the U.S. government is capable of genocide. However, when we give up the legal principles that limit that government, we leave the American civilization vulnerable to a gradual erosion of freedoms that could well culminate in genocide. Lesser attacks on our freedoms have appeared, and will certainly continue. What would Christians say if a "children's rights" amendment were proposed, forbidding corporal punishment, requiring federal monitoring of home schooling families, and allowing children to sue their parents for violating their privacy or not buying them Chocolate Frosted Sugar Bombs? Many of us would vigorously contest such a move. Some would argue, quite rightly, that such ridiculousness should be confined to ridiculous states that want more illiteracy and school shootings, and not imposed upon the rest of us. How can we make such a decentralist argument if we have ignored decentralist arguments made by the opponents of a right-to-life amendment?
In the U.S., we have seen such massive centralization in the last 140 years or so that it might seem an absurd waste of effort to try to regain so much lost ground now. Why not admit to our de facto federalization and form our pro-life strategy accordingly? The hazards in such pragmatism are extreme. Throwing out key principles that constrain the state to get a temporary victory over abortion means those principles will not be there when those constraints are needed to prevent other horrors. It is true that the youngest person reading this may not live to see every state legally regard abortion as murder, much less see the kind of constitutionality that we hope for. Yet the benefits of a principled adherence to a biblically limited form of government are enormous. It is worth spending centuries to regain them.
ROE + DOE = ABORTION ON DEMAND
Lost in most of the Roe and Doe decisions is the object of abortion, the preborn child. While the Court refers to a pregnant woman as a "mother," it refers to the baby in the womb as "the developing young" or "potential life."
In addressing the argument that the preborn child is a "person" deserving of protection under the Fourteenth Amendment's due-process clause (which says no state shall "deprive any person of life, liberty, or property, without due process of law"), the Court simply glosses over the scientific evidence of the preborn baby's humanity and writes him or her off as a Constitutional non-person.
Justice Blackmun drew this conclusion from three points. First, the Constitution does not define the word "person." Second, he said that the word "person," as used in the Constitution, in nearly all instances, "has application only postnatally." Finally, he opined that "throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today."
This final justification is interesting. One wonders if Justice Blackmun would consider slaves "persons," given that the legal sale of human beings was also "far freer" throughout most of the 19th century than it is today.
Nevertheless, the personhood of the preborn, which Justice Blackmun admitted would, if established, guarantee Constitutional protection for children in the womb, was rejected.
Once it dismissed the biological fact of the preborn's personhood, the Court then had to decide whether a state could decide on its own to protect preborn babies, even if the U.S. Constitution, as interpreted by the Court, wouldn't.
The state of Texas, whose law was challenged in Roe, argued that life begins at conception and that, therefore, the state had a compelling interest in protecting that life.
It is here that Justice Blackmun wrote perhaps the most infamous line from Roe: "We need not resolve the difficult question of when life begins." Blackmun declared that since "medicine, philosophy, and theology are unable to arrive at any consensus" as to when a human comes into existence, the Court would not speculate.
Casting aside the curious implication that the Supreme Court, as then constituted, would even look to theology to reach a decision, one is immediately reminded here of the California Medical Association. It said less than three years before Roe and Doe:
In defiance of the long-held Western ethic of intrinsic and equal value for every human life regardless of its stage, condition or status, abortion is becoming accepted by society as moral, right and even necessary. It is worth noting that this shift in public attitude has affected the churches, the laws and the public policy rather than the reverse. . . . The result has been a curious avoidance of the scientific fact, which everyone really knows, that human life begins at conception and is continuous whether intra- or extra-uterine until death.
Since the Court held that "when life begins" is an open question, Texas's "theory of life" could not override the Constitutional rights of a woman to have an abortion. In other words, the state could not outlaw abortion based upon its "interest" in preborn babies because its "interest" was held to be unprovable, much less "compelling."
What is the Human Life Amendment?
It is a proposed amendment to the United States Constitution that states, "The paramount right to life is vested in each human being from the moment of fertilization without regard to age, health or condition of dependency."
What does this mean?
Basically, it means that every human being possesses the right to life, regardless of whether he or she is an embryo, fetus, infant, adolescent, adult or senior citizen, whether he or she is in good or bad health, and whether he or she needs mechanical or other assistance to survive.
What does the "right to life" mean?
The "right to life" means simply the right to remain alive. It is the most important right because without it there can be no others.
What does "vested" mean?
It literally means "fixed" or "established." In the context of the Human Life Amendment, it means that each person's right to life is established at the time each person comes into existence and remains with him or her until death.
From where does the "right to life" come?
The Declaration of Independence answers this very clearly, stating that it is a "self-evident" truth that all people "are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The right to life, then, comes from our Creator, God.
Don't our rights come from government?
Some rights do come from government-for instance, Americans would not have the right to a jury trial in criminal cases if people, through the government, had not created it. The right to life, however, is not one of these rights. Each person has a right to live that is independent of any government.
If each person already has a right to life, why is the Human Life Amendment necessary?
It is necessary because the U.S. government does not recognize each human being's right to life. The Human Life Amendment would not "create" a right; it would cause the government to acknowledge and protect an existing right.
How would the Human Life Amendment affect legal abortion?
If adopted, it would permit states to enact and enforce laws to prohibit abortion. It would also permit Congress to adopt laws that protect the preborn.
Would it affect existing pro-abortion laws?
Yes. Current state and federal laws and regulations that legalize, regulate, or fund abortion could be successfully challenged in court. Pro-abortion laws would become unenforceable.
Why is the Human Life Amendment necessary to protect babies?
As noted, the U.S. government does not acknowledge everyone's right to life. The Supreme Court's Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) decisions say that abortion, not the preborn baby, is protected by the U.S. Constitution. Thus, any state or federal law that prohibits abortion is, according to the Supreme Court, unconstitutional at this time.
How would the Human Life Amendment require judges to protect babies?
The Human Life Amendment specifically states that all human beings, from the time of fertilization, have a right to life. With its adoption, judges could no longer claim that the preborn were not included in the Constitution. (The Fourteenth Amendment defines "citizens" as "persons born or naturalized in the United States" and forbids states to "deprive any person"-citizen or not-"of life . . . without due process" but doesn't define "person.") Rather than leave justices and judges to argue over whether a preborn baby is a "person" the Human Life Amendment would spell out that the baby has the same right to live as any other human being; like any other human being, the preborn baby would be entitled to equal protection under law and could not be deprived of life without due process of law.
But isn't there an easier way to protect babies than to pass a Constitutional amendment?
No other way would provide the security of an amendment. State laws cannot protect babies because of Roe v. Wade. Federal laws protecting babies could be declared unconstitutional or, if upheld, could simply be overturned by a majority vote of a later Congress.
An amendment is more permanent, then?
Yes. While no law or Constitutional amendment can be "written in stone," so to speak, amending the federal Constitution is as close to permanent legal protection for the preborn as anyone can obtain.
"If a human life amendment is added to the Constitution, the fertilized egg could have more rights than you do." So predicts Rhonda Copelon, writing in the February, 1981, Ms. magazine. A human life amendment, she warns, "could make women slaves to the fetus and thereby to the state." Clearly, the pro-abortion forces are worried. A full-page ad sponsored by the STOP HLA Campaign of the National Organization for Women, in the Washington Post (Feb. 4, 1981), warns that:
"The HLAs sponsored by leaders of the anti-abortion movement in Congress would outlaw the IUD and some birth control pills. These methods of birth control can prevent the implantation of the fertilized egg, thus denying it the 'right to life.' Under the HLA, some forms of birth control become the equivalent of homicide. Under the HLA, if a woman should have a miscarriage or a spontaneous abortion, she could be investigated to determine whether it was accidental or intentional. She could be subject to criminal prosecution."
"To enforce this 'right to life,'" writes columnist Ellen Goodman, "aborted women and their doctors would surely be charged with murder. IUDs would, in all likelihood, also be banned. But the amendment also would require ultimately a massive hunt, a government edict to investigate 'miscarriages,' to oversee the habits of pregnant women and monitor research from genetic screening to amniocentesis. This is not fantasy. It is probability" (Chicago Sun-Times, Feb. 1, 1981, p. 5).
These suggestions are essentially fantasy, but it is important to deal with them seriously. They indicate the new thrust of the pro-abortion campaign. The pro-abortionists are trying to make the issue a referendum on "birth control" in general, which term is broad enough to include contraception as well as abortion.
As long as the issue is the killing of preborn babies, clearly presented as such, the anti-life forces know that ultimately the American people will choose life and that they, the baby killers, will lose. But the American people are still apparently favorable to contraception. And the pro-abortionists are trying to frame the issue as if the Human Life Amendment would outlaw contraception as well as abortion.
It is true, of course, that the plague of abortion is attributable in large part to the mentality of unwanting babies that is characteristic of the contraceptive society that we have become. Nevertheless, the Human Life Amendment would not in any way outlaw contraception. Abortion is the taking of existing human life while contraception is the prevention of life. All that the Human Life Amendment would do is provide that the preborn child has the same right to live as his elder brother or his grandmother. It would not affect in any way the legalization of contraceptives.
Various forms of human life amendments have been proposed. But the one which most arouses the ire of the anti-life movement is the Paramount Human Life Amendment, which provides, "The paramount right to life is vested in each human being from the moment of fertilization without regard to age, health, or condition of dependency."
This is the strongest and most effective amendment pending in Congress. But to understand what it would accomplish and why the pro-abortionists' warnings about it are exaggerated, we have to consider the basic constitutional issue presented by the abortion controversy.
Your right to live is protected by the Constitution because you are a "person." But in Roe v. Wade (410 U.S. 113[1973]) and Doe v. Bolton (410 U.S. 179[1973]), the Supreme Court ruled that the preborn child is not a "person" at any time before birth, within the meaning of the Fourteenth Amendment, which protects the right of a "person" to life and the equal protection of the laws.
The mother's privacy right to have an abortion (a right which the Court discovered in its own rulings since 1965) was held by the Court to prevail over the non-right of the non-person in her womb. For the first two trimesters of pregnancy, the Court allows the states, in effect, to impose no prohibition at all on abortion. During the third trimester, the state cannot prohibit abortion where it is sought to preserve the life or health of the mother.
The health of the mother, however, includes "psychological as well as physical well-being," and "the medical judgment may be exercised in the light of all facts-physical, emotional, psychological, familial, and the woman's age-relevant to the well-being" of the mother (Doe v. Bolton, 410 U.S. at 191-92). Mental health is such an elastic criterion that the rulings are in effect a license for elective abortion at every stage of pregnancy until birth. In practical terms, the life of the preborn child has no more constitutional protection than the life of a goldfish.
The Human Life Amendment would restore personhood to the preborn child. But the Constitution is not a code of criminal law. The implementation of the guarantee of personhood would be up to the state legislatures, just as the implementation of the Fourteenth Amendment's guarantees is for those legislatures with respect to the right to live of persons already born. The Supreme Court misinterpreted the Fourteenth Amendment in holding that the preborn child is not a "person." The basic thrust of the Human Life Amendment is merely to correct that misinterpretation to restore to the preborn child the same right to live that is enjoyed by his elder brother or his grandmother.
Against this background we should consider some of the exaggerated claims made by the pro-abortionists in an effort to scare off supporters of the Human Life Amendment:The HLA would require the states to punish abortion as murder or as manslaughter.
Let us be clear about one thing. Abortion is murder in the moral sense because it is the directly intended taking of human life without justification. It was in this sense that Rev. Christian Bartholdy, a Danish Lutheran, observed in 1965 that permissive abortion was turning his country into "a nation of murderers" (Grisez, Abortion: The Myths, the Realities and the Arguments [1970], 349).
But in legal terms, the crime of abortion, for historical reasons, has not been defined as murder in criminal statutes or at common law. It is up to the legislature to determine the classifications and degrees of crimes, which generally depend on extenuating circumstances and the mental state of the defendant. Under the Human Life Amendment, the state legislatures would have flexibility in determining how abortion would be punished as it has such flexibility with respect to other unjustified killings. The irreducible minimum is that the preborn child would no longer be a non-person whose killing would be unpunished by the law. But the legislature could decide how to punish it.
It would be proper, for example, for the state to emphasize the punishment of the doctor; it would be proper for prosecutors or the legislature to minimize or even forgo punishment of the mother in order to focus on the doctors.
In any event, the above objection of the pro-abortionists is a scare tactic. The vision of women undergoing abortion and then being sentenced to the electric chair is a fantasy. The reality under the HLA will be no different in this respect from the reality under pre-1973 abortion laws. The real targets of prosecution will be the doctors and others who reap financial or ideological profit from their participation in the murder of preborn babies.If a woman has a miscarriage or a spontaneous abortion, she will be investigated to determine whether it was spontaneous or intentional. She could be subject to criminal prosecution.
Under the HLA this will be no more true than it was under pre-1973 abortion laws. The common sense of the medical and legal professions can be relied on to prevent abuse here. This objection, incidentally, raises an interesting question with respect to child abuse and infanticide. If a child accidentally falls and dies or is accidentally scalded in a tub of hot water, it is possible that the question might arise as to whether the injury or death was due to child abuse. Yet the possibility of such questions being raised, as they should be by alert medical and law enforcement personnel, does not mean that we should abolish the general child abuse and homicide laws. If the HLA were adopted and abortion were made a crime, the mother experiencing a spontaneous abortion would have no more cause to worry about prosecution than does the mother whose two-year-old infant is accidentally drowned in the backyard pool. In neither case does the possibility that the death of the preborn or the infant might be suspected to be criminally caused in some cases argue for the abolition of the statutes making the deliberate killing of such a victim a crime.The HLA would bring invasions of privacy. The government could require monthly pregnancy tests for all women; all pregnancies or suspected pregnancies would have to be registered; once pregnancy is established, the state could require the mother to give up smoking, drinking and so on, for the protection of the child.
This parade of horribles ignores the fact that we have in our Constitution a Fourth Amendment which prohibits "unreasonable searches and seizures." The HLA would not abolish the right of privacy. All it would do is restore to the preborn child the protection of the traditional principle that lesser rights such as the right of privacy do not outweigh the right to life.
If these and other conjectures of the pro-abortionists were realistic, why were no such excesses evident under the pre-1973 abortion laws? The answer is that the good sense of legislatures, courts and the people can be counted on now as before to prevent abuse.
Incidentally, prior to 1973, a woman could be required to undergo procedures which were not dangerous to herself in order to save the life of the preborn child she was carrying. Thus, in Raleigh-Fitkin-Paul Morgan Memorial Hospital v. Anderson (42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 [1964]), the New Jersey court required a woman to undergo a blood transfusion, despite her religious objections, in order to save the life of her preborn child.
But it is incorrect to suggest that under the HLA a pregnant woman could be required to take a drug dangerous to her own life, or undergo some procedure dangerous to her life, even to save the life of her child. She would have no right to kill her preborn child. But neither would she be required to kill herself even to save her child. This principle would be no more susceptible to abuse under the HLA than it was under the pre-1973 rulings.Use of an lUD or a birth control pill would be a crime since they evidently interrupt a pregnancy after fertilization.
It is clear that the intrauterine device and many birth control pills are abortifacients rather than contraceptives. The HLA would permit a state legislature to control such abortifacients in the only practical way, which is through the licensing procedure. It would be impossible, however, to prosecute for abortion in such cases, since it would be impossible to prove that the pregnancy had actually occurred and had been terminated by the device or pill.
Where a device or pill has no other use than to terminate life, the legislature, pursuant to the HLA, could prohibit its manufacture and sale. Where a device or pill has alternate, non-abortive functions, its prescription by the medical profession could be subject to appropriate regulation.
This is a matter of great importance, because the abortion of the near future is going to be by pill or other do-it-yourself means. If we concentrate only on surgical abortions at later stages of pregnancy, we risk sanctioning a wholesale slaughter of persons in the earliest stages of life. There is a tendency in some parts of the pro-life movement to seek a "quick fix" by conceding the legitimacy of early abortions. This would be a fatal mistake. The fact is that the lUD and most birth control pills do kill people. Their victims are very little people but it surely is within the power of any civilized society to do whatever can be done to prevent those killings.The HLA would outlaw contraception.
This is false. Abortion is the taking of life while contraception is the prevention of life. The HLA would not restrict contraception in any way. There is a definite connection between abortion and the contraceptive mentality of unwanting babies. But the HLA does no more than guarantee the rights of personhood once life has begun.
Eleanor Smeal, head of the National Organization for Women, said, "We need to make people aware that the proposed HLA will turn back birth control to 1900 and the amendment will be politically dead. It is a tragic waste that we have to fight Margaret Sanger's battles all over again..."
This is a revealing comment. Margaret Sanger was a strong advocate of eugenic sterilization. She called the "feebleminded" a "menace to the race" and she proposed "to apply a stern and rigid policy of sterilization and segregation to that grade of population whose progeny is already tainted, or whose inheritance is such that objectionable traits may be transmitted to offspring" (Elasah Drogin, Planned Parenthood's Margaret Sanger: Architect of Modern Society [Human Life Center, Collegeville, Minn., 1979]).
"There is only one reply," she stated, "to a request for a higher birth rate among the intelligent, and that is to ask the government to first take the burden of the insane and feebleminded from your back. Sterilization for these is the solution" (Ibid.).
Among the slogans she coined to promote her movement were "More children from the fit, less from the unfit-that is the chief aim of birth control" and "Birth control: to create a race of thoroughbreds" (Ibid.).If the right to life is guaranteed by the HLA "irrespective of age, health, or condition of dependency," would not the state then be required to
provide the basic necessities of life for people of all ages?
No. The experience under the Fourteenth Amendment is the guide here. The HLA, like the Fourteenth, is a protective amendment. It would require the states to protect life. But the fact that the life of a teenager or an adult is protected by the state does not mean that he has a right to a state subsidy. The HLA would make no change in this regard.How can the duty to provide bodily sustenance to another be confined to pregnant women? Under the HLA, why can't the state require everyone, male and female, to provide a needed organ or other bodily material to save another person?
Here again the Fourteenth Amendment is the guide, since the HLA would merely correct the Supreme Court's erroneous interpretation which excluded the preborn child from the protection of the Fourteenth Amendment. Under the Fourteenth Amendment, the state cannot require people in general to donate an organ even to save another's life. The law here is protective. It sets a minimal standard to prevent invasion of rights. Only in very limited situations does the law impose affirmative duties. The pregnant woman has the duty merely to provide sustenance and protection to the child she is carrying. This is merely a recognition of her unique relation to the child she is carrying.
After birth the parental duty of sustenance and protection continues, though in a different form. But it is fantasy to suggest that the HLA would lead to such things as mandatory organ transplants.The National Organization for Women claims, "Under laws defining murder, manslaughter, assault, kidnapping and myriad other crimes involving a person as victim, the fertilized egg and fetus would be included as potential victims."
The HLA restores personhood to the preborn child only with respect to his "right to life," since it was with respect to this right that the Supreme Court denied such personhood. Assault, kidnapping and other laws not involving homicide obviously would not be required to be enforced for his protection. With respect to homicide laws, the answer to question 1, above, is relevant.Under the Human Life Amendment, wouldn't the preborn child have to be counted in the census, be considered a dependent for tax purposes, have to obtain a passport if his mother leaves the country, etc., etc.?
The answer to these and similar objections is: No. The Human Life Amendment would require only that the preborn child be treated as a person with respect to his right to life. It was with respect to that right to life that the Supreme Court denied his personhood. Inclusion in the census, passports, etc., would not be required under the HLA because those issues do not involve the deprivation of his right to life.Under the Human Life Amendment, wouldn't the "right to life" attach to an egg fertilized in a dish by in vitro fertilizations?
Yes. There is no sense equivocating on this issue. When Louise Brown, the first "test-tube" baby, was born, the whole world acknowledged that her life had begun at the time of fertilization by the in vitro process. The common practice with in vitro fertilization is to fertilize several eggs, let them mature for a time, select the best one for use and throw the others away. The HLA would guarantee the right to live of all human beings, even the smallest. It would permit the states to regulate the process of in vitro fertilization so as to protect that right. In civilized society there can be no "throw-away" human beings.Isn't it true the "no-exceptions" Human Life Amendment is an effort to enact into law a sectarian Catholic doctrine?
No. The "no-exceptions" position coincides with Catholic teaching. But so do the laws forbidding bank robbery. In neither case can such a law be condemned as a sectarian intrusion on public policy. The "no-exceptions" position is justified on grounds essential to the maintenance of any civilized society. And it is an insult to pro-life people who are not Catholic to suggest that the pro-life movement is a Catholic front. "As a Christian," writes Pastor Kent Kelly of Calvary Memorial Church in Southern Pines, North Carolina, "you have no business debating the abortion issue unless you are against abortion, period." The argument for an exception even to "save the wife," he concludes, "like every other argument of the abortionists, is based on a false premise to generate sentiment in favor of the murder of the unborn" (Kelly, Abortion: The American Holocaust. Calvary Press, 400 South Bennett St., Southern Pines, NC 28387; 1981, pp. 94, 96).
In fact, the official Catholic Church in this country has been put to shame by the pro-life zeal of other Christians, Mormons and Orthodox Jews. It would be a shame if some people were to allow the vestiges of a well-forgotten prejudice from the past to interfere with their total commitment to the restoration of the right to live. It is unthinkable that anyone dedicated to that cause would withhold his support merely because Catholics, acting in accord with their own convictions, are also engaged in that effort.How should we deal with the endless objections and accusations that will be raised against HLA?
The important thing is to keep emphasizing the limited scope of the HLA, as outlined above. Pro-abortionists are trying to mislead people of good will. Our only recourse is to state the facts calmly and persistently. It is not the pro-life movement which is committing an outrage against the Constitution. The outrage was perpetrated by the Supreme Court and is being carried on by those who support the pro-death abortion rulings of the Court.Shouldn't we try to find some middle ground that will not be subject to objections?
No. If the Ten Commandments were proposed for a vote, the same sort of tactics would be used by their opponents as are being used against the HLA, which is merely an application of the basic prohibition in the Decalogue against the murder of the innocent. There can be no compromise on this issue.
But the reassuring factor is that the pro-life movement grows and succeeds only to the extent that it refuses to compromise and to the extent that it puts its primary trust in God.
No constitutional amendment is perfect. And we should remain open to genuine improvements. But objections of the sort we have discussed herein are not raised in order to improve the amendment. They are the product of a campaign of wholesale misrepresentation. That campaign can be countered-and we can achieve success-only with the truth, hard work and prayer.
Basic questions and answers on the Human Life Amendment follow. Please turn the page.HLA Basics
What is the essence of the 1973 Supreme Court ruling and how has that ruling affected abortion practices?
In its 1973 abortion decisions, the Supreme Court ruled that the preborn child is not a person within the meaning of the Fourteenth Amendment and that therefore the preborn child is not entitled to the right to life protected by that amendment. In providing guidelines, the Court allows the states to impose no prohibition at all on abortions performed during the first two trimesters of the pregnancy. During the third trimester, the Court held, the states could prohibit abortions except in cases where the abortion is sought to preserve the life or health, physical or mental, of the mother.
Since no restrictions are allowed on abortion in the first two trimesters, and since "mental health" is such an elastic criterion, the net effect of the Supreme Court rulings is to require the states to allow elective abortion at every stage of pregnancy until birth.What is the remedy for the Supreme Court decisions that mandate such elective abortions?
The ultimate remedy to the Supreme Court decisions is an amendment to the U.S. Constitution. The amendment must accomplish the following three objectives:
Every year we "legally" kill by abortion innocent human beings in numbers equivalent to the combined populations of Kansas City, Minneapolis and Miami-at least 1,300,000. Because of the horrible dimensions of this mass slaughter, there is a tendency in some areas of the pro-life movement to favor whatever will promise an immediate reduction of the killings, even if that reduction is at the price of permanently legalizing abortion on a smaller scale. Those who insist, on the contrary, that the right to life must be restored, without exceptions, may appear to be heartless and more devoted to an abstract principle than to the saving of innocent lives. In fact, the Supreme Court rulings on abortion leave no alternative but to support a no-compromise, no-exception constitutional amendment that would prohibit all abortions. Such an amendment has already been proposed in Congress and is named for its co-sponsors, the Helms-Dornan amendment. There are no situations where abortion is medically or psychiatrically justified to save the life of the motherWhy shouldn't abortions to save the life of a mother be permitted under the law?
We must be careful, however, to distinguish cases such as the cancerous uterus and the ectopic or tubal pregnancies. If a pregnant woman has a cancerous uterus and, to save her life, it is necessary to remove the uterus, and the operation cannot be postponed until the baby is born, then the uterus may be removed even though such an operation results in the death of the preborn child. Similarly, when a fertilized ovum lodges in the fallopian tube and begins to grow there, the damaged portion of the tube, containing the developing fetus, may be removed surgically where it is clearly and imminently necessary to save the life of the mother. Such operations as these are considered moral even under Catholic teaching (see Ethical and Religious Directive for Catholic Health Facilities, National Conference of Catholic Bishops, 1971, paragraphs 10-17).
Morally, these operations are considered indirect abortions and they are justified by the principle of the double effect, since the death of the child is an unintended effect of an operation independently justified by the necessity of saving the mother's life. They do not involve the intentional killing of the preborn child for the purpose of achieving another objective, such as the preservation of the mother's health or life. Morally, therefore, such operations may be justified.
Legally, they are not considered to be abortions at all. There has never been a prosecution even attempted in this country based on the removal of such a condition, even where the mother's life was not immediately threatened. There is no need, therefore, to provide a specific exception for such cases in a constitutional amendment prohibiting abortions.
Apart from such cases as the ectopic pregnancy and the cancerous uterus, there is no medical or psychiatric justification for terminating a pregnancy. But even if there were, a constitutional amendment should not legalize abortion in such cases.
For example, if two people in the middle of the ocean are on a raft that can hold only one person, the law does not permit one to throw the other overboard even to save his own life (see Regina v. Dudley and Stephens, 14 Q.B.D. 273, 15 Cox C.C. 624, 1884; and U.S. v. Holmes, 2G Fed Cases 360 [No. 15,383] C.C.E.D., Pa., 1842). Otherwise, might would make right. In maternity cases, the duty of the doctor is to use his best efforts to save both of his patients, the mother and her child. He should not be given a license to kill intentionally either of them.Why shouldn't abortions be permitted to preserve a mother's health or when amniocentesis shows that the child will be born with serious defects?
If an exception should not be made where the life of the mother is concerned, it follows that an exception should not be made for any lesser reason. To allow abortion to prevent injury to the mother's mental or physical health (where her life is not in danger) is to allow killing for what ultimately amounts to convenience. And to kill a preborn child because he may be born defective is to do exactly what the Nazis did to the Jews whose lives they regarded as not worth living.But why shouldn't abortions be allowed to those women who become pregnant by rape or incest?
The woman who is raped has a right to resist her attacker. But the preborn child is an innocent non-aggressor who should not be killed because of the crime of the father. More to the point, since a woman has the right to resist the rapist, she also has the right to resist his sperm. There are non-abortive measures that can be taken, consistent with the law and even with Catholic teaching, promptly after rape, which are not intended to abort and which will prevent conception.
However, once the innocent third party to a rape, the preborn child, is conceived, he should not be killed. The duty of the state and society in all cases of "troubled" pregnancies is to mobilize resources to solve the problems constructively with personal and financial support. A license to kill is not a constructive solution.
Incest is a voluntary act on the woman's part. If it were not, it would be rape. And to kill a child because of the identity of his father is no more proper in the case of incest than it is in the case of rape. Again, the positive solution of support should be pursued, not legalized murder by abortion.
In Roe v. Wade, the basic 1973 abortion ruling, the Supreme Court held that if the personhood of the preborn child is established, the pro-abortion case "collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment." This is because the law does not permit one person to kill another innocent person even to save the life of the killer. As the Supreme Court itself noted in Roe v. Wade:
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 contained in Article 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?
It seems clear from those statements of the Court that a simple restoration of "personhood" to the preborn child, without exceptions, should prevent the states from legalizing any abortions, even when they are claimed to be necessary to save the life of the mother. Such a result is consistent with the common law, under which the principle of necessity does not justify anyone taking the life of an innocent non-aggressor even to save his own life. The Paramount Amendment implicitly, but clearly, restores "personhood" to the preborn child without any exceptions. The amendment provides:
The paramount right to life is vested in each human being from the moment of fertilization, without regard to age, health or condition of dependency.
It is true that the Paramount Amendment would not prevent the state legislatures and the Supreme Court from applying, incorrectly, the law of necessity so as to permit abortion to save the life of the mother. But no constitutional amendment on any subject can be drawn so as to be immune to misconstruction. The recent history of the Fourteenth Amendment is evidence enough on that point. The object of a Human Life Amendment should be simply to restore to the preborn child the same right to live which is enjoyed by his older brother and his grandmother. Even the Supreme Court acknowledged in Roe v. Wade that such recognition of personhood would prevent the legalization of abortions even where claimed to be necessary to save the life of the mother.Wouldn't it be better to have a Human Life Amendment with limited exceptions so as not to invite courts and legislatures to write their own more far-reaching exceptions?
It has been argued by some that to write an amendment without exceptions is to invite the states and the Supreme Court to write their own exceptions which could be practically unlimited. But this contention is unsound. It argues that if you write in just one little exception, the states and the Court will not be able to add others. This is wholly unrealistic.
To argue that writing one exception into the amendment will prevent the Supreme Court from adding others is to rely on the Court's adhering to the canon of legislative drafting expressio unius est exclusio alterius-which means that the inclusion of one excludes others not mentioned. This canon of interpretation, however, is merely presumptive and has been disregarded by courts on numerous occasions.
Curiously, those who favor exceptions on this theory rest their case on the expectation that the Court will strictly adhere to this merely presumptive guide to construction while they wholly disregard the more basic concepts of personhood and necessity which were even acknowledged by the Court in Roe v. Wade. Advocates of an exception are sure the Court will disregard that very basic concept under which a restoration of personhood would prevent all abortions while they assume that if one exception is written in, the Court will feel itself bound by the merely presumptive rule of expressio unius and will go no further.
In fact, it is impossible to draft any exception clause which will not open the door to psychiatric abortions and, in ultimate practice, to abortions on request. Even the most limited exception would be broadly interpreted. For example, on the televised MacNeil/Lehrer Report, April 22, 1980, Dr. Michael Burnhill of the National Abortion Federation said that even an exception limited to abortions that would endanger the life of the mother would permit him to perform whatever abortions he thought were "medically necessary," which would include abortions to preserve the mother's "health," which he defines as "a condition in which one can actively participate in one's total life, that you are not a cripple or an invalid."
On a practical level, the recent experience with the Hyde Amendment indicates that when pro-lifers concede one exception, they disarm themselves and become incapable of resisting the arguments of those who would extend the exceptions to cover such cases as rape and incest. The preferable alternative is to restore personhood to the preborn child with respect to his right to live without exceptions.But isn't it good tactics to include exceptions in an amendment to make sure it will gain a broad support?
No. Those in the pro-life movement who traffic with exception clauses are trying to gain support from those who favor "only a few" abortions. But such people are worthless as allies since they are basically opposed to an authentic pro-life position and since they are practically incapable of resisting the expansion of their exceptions.
On the contrary, the pro-life movement is only as strong as its refusal to compromise. In fact, there are no cases where a legal abortion is necessary even to save the life of the mother. The removal of a cancerous womb or an ectopic pregnancy is not an abortion in legal terms and therefore no exception clause is necessary to authorize such operations, which are permitted even under Catholic teaching.
Agreeing on amendment language is a problem mainly for those who are trying to carry water on both shoulders. If you want leeway for some abortions, or if you favor the intrauterine device or morning-after pill, which are early abortifacients, you will have trouble with the language, and you will end up with an "anything goes" amendment.
Those who propose exceptions to the right to live present themselves as pragmatic realists. But in fact the only practical solution here is one that adheres to principle. If an amendment with exceptions to the right to live were ever passed by Congress and sent to the states for ratification, it would have to be actively opposed by all who regard the right of innocent life as non-negotiable.
Such an amendment would never be ratified over the opposition of the strongest elements in the pro-life cause. To write into our Constitution a license for the intentional destruction of innocent life would be to adopt the jurisprudence that underlay the Nazi extermination of the Jews. This we can never allow.What is really at stake in this matter of making exceptions to the right to live?
The real issue is whether life is a gift of God or of the State. Innocent life is non-negotiable precisely because it comes from God. The governing principles were stated by Pope John Paul II in his homily at the Capitol Mall on October 7, 1979:
I do not hesitate to proclaim before you and before the world that all human life-from the moment of conception and through all subsequent stages-is sacred, because human life is created in the image and likeness of God. Nothing surpasses the greatness or dignity of a human person... Let me repeat what I told the people during my recent pilgrimage to my homeland: "If a person's right to life is violated at the moment in which he is first conceived in his mother's womb, an indirect blow is struck also at the whole of the moral order, which serves to ensure the inviolable goods of man. Among these goods, life occupies the first place. The Church defends the right to life, not only in regard to the majesty of the Creator, who is the First Giver of this life, but also in respect of the essential good of the human person."
On a more specific level, the Declaration on Procured Abortion, issued with the approval of Pope Paul VI in 1974, said, "Man can never obey a law which is in itself immoral, and such is the case of a law whichlicityadmit in principle the liceity of abortion. Nor can he take part in a propaganda campaign in favor of such a law, or vote for it."
It is long past time for the pro-life movement to stop apologizing for itself and to affirm without compromise that life is a gift of God and not of the State. Our duty is to protect the right to live of each and every child of God.
From our beginning as a nation we have held that all men are created equal, and are endowed with the right to life, liberty, and the pursuit of happiness. But our understanding of who "men" are has developed dramatically over time. Such developments do not occur out of thin air. They come from persuasion. And persuasion typically begins with the staunch moral commitment of a tiny minority. They win over the majority in time, not, primarily, by their rhetorical brilliance or their strategic acumen, but by their patient and uncompromising witness to the truth. It is truth that commends itself eventually to the conscience of society as whole. At least, this is what we hope and pray for.
Thus, while discussion of legal strategies and practical pros and cons in the pro-life movement is all well and good, none of it compares in importance to sustained reflection and debate about the absolutely central questions of the moral realities at stake in abortion. If we lose interest in those, we are lost indeed.
Kathleen van Schaijik
Ann Arbor, Michigan
Still one must ask: Can things really get any worse? In Roe, the Court concluded that "the word 'person' as used in the Fourteenth Amendment does not include the unborn"-a conclusion that Casey left intact. Thus, one is left to wonder how the consequences could be worse should NFFL's strategy fail.
Justice Antonin Scalia has gained admirers by arguing that the Constitution is "silent" on abortion, so that the states are free to protect the practice or prohibit it as they see fit. …If unborn human beings are constitutional persons, they are entitled to the same protections afforded others. Presumably these protections would prevent women from killing their children in utero.
Although the Constitution does not expressly state whether "person" includes the unborn, it is similarly silent with respect to any number of constitutional terms. The First Amendment does not define "religion," yet the Court does not let states do so, nor does the Court shrink from giving content to the term in its decisions. Likewise with "speech," "probable cause," "searches and seizures," "due process," and "equal protection"-undefined terms all. Instead, since Chief Justice John Marshall's day, the Court has insisted that it is "the province and duty of the judicial department to say what the law is." Thus, it is incumbent on the Court to give meaning to the constitutional term "person."
Mr. Linton is also right that the failure to recognize the unborn's personhood reflects a defect in judicial will, not intellect.
It would be incongruous for courts to admit that an unborn child is a human being and to simultaneously deny him or her the protections of legal personhood. With the notable exception of slavery and a few wholly discredited decisions such as Buck v. Bell, the categories of "human being" and "person" under the Constitution have been coextensive. Thus, to exclude some human beings from the protections of personhood cannot fit within our jurisprudence.
Even if the NFFL is unsuccessful, forcing judges to employ reason and not simply will and forcing them to make arguments for such an untenable position might serve a greater political purpose. It might serve to rouse the public to see such decisions, and all the Court's abortion decisions, for what they truly are, namely (in Justice Byron White's words), "an exercise of raw judicial power." Such recognition might lead to the wider public conversation that is needed and which Mr. Linton's article implicitly recognizes and proposes.
…A judicial declaration would not change the hearts and minds of Roe's proponents. The culture of "choice," as a culture of death, would still rule the day.
…Society needs to engage in an honest conversation about the reality of abortion, a conversation that was largely muted by the Court's decision in Roe. Politics and political discourse have a vital role to play in this process.
One would hope that such conversation would take place if the Court were to overturn Roe and place the matter in the hands of the states. Obviously, such a conversation would have to precede a constitutional amendment. In either case, the real question is, How can the issue be brought to that moment? The NFFL strategy, even if unlikely to succeed in court, may help advance the cause of the unborn in other ways.
John M. Breen
Loyola University School of Law
Chicago, Illinois
It is precisely because of those realities that I have been engaged in the pro-life movement for the last fourteen years. And "the moral realities" should inform the public debate over abortion, state and federal legislation (for example, fetal homicide statutes and statutes extending wrongful death actions to all unborn children), and, where appropriate, litigation.
But in my judgment, constitutional recognition of the rights of the unborn child will come about, if at all, only through an amendment to the Constitution, not a court decision. …The political branches of government are much more susceptible to this type of persuasion than the judicial branch, particularly the Supreme Court, which continues to pretend that it laid the abortion issue to rest in its decision in Casey v. Planned Parenthood eleven years ago….Is it morally prudent to pursue a litigation strategy that is likely to result only in more court decisions holding, as the Third Circuit already has in the Whitman case, that being human is not a sufficient basis for being considered a "person"?
…In Roe, the Court, per Justice Harry Blackmun, professed an inability to state when human life begins. …Such a decision would tend to reinforce the repellent doctrine preached by some academics and others that having the attributes of humanity (i.e., being genetically of the species Homo sapiens, being alive and developing) provides no claim to the protection of the law.
Second, after a short critique of Justice Antonin Scalia's view that the Constitution's "silence" on abortion disqualifies the Supreme Court from considering whether the unborn child is a constitutional person-a view which I must emphasize is shared by Chief Justice William Rehnquist and Justice Clarence Thomas (and in which the late Justice Byron White concurred)-Prof. Breen states that "it is incumbent on the Court to give meaning to the constitutional term 'person.'" The problem is that the Court already has given meaning to the term, in Roe, and that meaning does not include the unborn child. I do not disagree with Prof. Breen that unborn children should be considered constitutional persons-my disagreement is how that recognition should be brought about.
Third, Prof. Breen posits that "it would be incongruous for courts to admit that an unborn child is a human being and to simultaneously deny him or her the protections of legal personhood." Incongruous, perhaps, but not inconceivable. Indeed, that is precisely what the Third Circuit did in the Whitman case, decided only five years ago, and what the New York Court of Appeals did more than thirty years ago in the Byrn case, in rejecting a "personhood" challenge to the pre-Roe, New York abortion-on-demand statute enacted in 1970.
…Prof. Breen himself acknowledges that society's need "to engage in an honest conversation about the reality of abortion . . . was largely muted by the Court's decision in Roe." And that was thirty years ago, before abortion became embedded in the culture. More recently, we saw the Supreme Court create a constitutional right to kill a child in the course of its birth in a decision (Stenberg v. Carhart) that betrayed no ignorance "about the reality of abortion." Where was the public outrage?
…The Court picks and chooses its cases and can easily avoid addressing issues that, in the Court's opinion, could embarrass the Court or undermine its credibility. Cases attempting to overturn Roe on the basis of the personhood of the unborn child, the rights of the father to prevent an abortion, or the rights of the mother to have a relationship with her child (all theories that have been pursued at one time or another by the NFFL and others) have never been accepted for review by the Supreme Court and, in my opinion, never will be. Roe will be overruled when five Justices on the Court agree that the Constitution does not confer upon women a right to have an abortion. Then, and only then, will Roe be discarded.
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