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By Dave Leach R-IA Bible Lover-musician-grandpa (talk) 01:58, 4 June 2019 (UTC) (Contributions, corrections, comments by other authors are separated with horizontal lines and are signed)

Alabama’s Abortion Ban: what threatens it, how we can save it

Video: See "Latest Abortion Laws: Alabama, Missouri" on the Biblewizard2 channel on Youtube.

The lead sponsor of Alabama's bill, and the author of the "Foundation for Moral Law" amicus brief, were shown this article a week before publication but chose not to interact.

Alabama is only the second state, since Rhode Island 46 years before, to outlaw virtually all abortion with stiff criminal penalties. It “makes providing an abortion a Class A felony, carrying with it a prison sentence of up to 99 years.” Alabama’s HB314, unlike any other past or imminent review of any other state prolife law since Rhode Island, is challenging federal courts to address the evidence that unborn babies of humans are humans (“persons”).

This article is about steps which, if taken, can get HB314 where it can end legal abortion. This article is about what we can do to encourage those steps to be taken. This article is also about the threats to HB314 if nothing changes.

HB314 was signed by Governor Kay Ivey Wednesday evening, May 15, 2019, the eve of the 46th anniversary of when Rhode Island’s similar law was shot down on May 16, 1973,

Strong evidence of Life. Like Rhode Island, Alabama added a “Legislative Findings” making a case for legal protection of the unborn, which courts reviewing the law will need to address:

...medical science has increasingly recognized the humanity of the unborn child. (f) Recent medical advances prove a baby's heart starts to beat at around six weeks. At about eight weeks, the heartbeat can be heard through an ultrasound examination. A fetal Doppler can detect a fetal heartbeat as early as 10 weeks. (g) Ultrasound imaging shows the developing child in utero. (h) As early as six weeks after fertilization, fetal photography shows the clear development of a human being. The Alabama Department of Public Health publication “Did You Know . . .” demonstrates through actual pictures at two-week intervals throughout the entire pregnancy the clear images of a developing human being.

But that’s irrelevant. Sadly, that isn’t enough to move the judges on the 11th Circuit federal court, where HB314 is now headed. At least it wasn’t enough last year, when the 11th Circuit wrote a stronger acknowledgment of the humanity of “a living unborn child”, with supporting medical evidence, and yet treated all that evidence as irrelevant – certainly no reason to stop murdering children by as brutal a “procedure” as has ever occurred to an evil imagination! That court said:

...dismemberment abortion [which we support]...involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child. This is usually done during the 15 to 18 week stage of development, at which time the unborn child’s heart is already beating. ...The parties agree that...an unborn child is alive while its heart is beating, which usually begins around six weeks. See How Your Fetus Grows During Pregnancy, Am. Coll. of Obstetricians & Gynecologists (April 2018), http://www.acog.org/patients/faqs/ how-your-fetus-grows-during pregnancy. West Alabama Women's Center v. Miller, 17-15208, 8/22/2018

The fact, agreed to by everyone, that abortion kills living children with beating hearts, is irrelevant in deciding whether to let mothers kill them?! By what logic?

The 11th Circuit didn’t mention any logic. They only said Roe made them do it. “In our judicial system, there is only one Supreme Court, and we are not it. As one of the ‘inferior Courts,’ we follow its decisions.”

But we can infer a rationale from what the federal court told Rhode Island in 1973, a rationale which was repeated in thousands of later abortion prevention trials (where prolifers prevented abortions, mostly by blocking doors) even though it is the opposite of what Roe v. Wade said.

In 1973, Rhode Island was told that babies are not people as a matter of law, according to Roe, so it is irrelevant whether babies are in fact people. Is that what courts will tell Alabama?

Roe didn’t say that. It is critical that prolifers understand that is the opposite of what Roe v. Wade said. Only when a significant portion of the population can tell when judges violate not only Scripture, morality, and common sense, but their own precedents, can judges be held accountable. The other reason prolife legal education is critical is that only to the extent of prolife consensus about the most effective legal strategies can prolife lawmakers have the support they need for the most effective prolife bills.

Before I show that Roe didn’t actually rule that babies are not “persons” or treat unborn personhood as “a matter of law”, or treat the factual nature of the unborn as irrelevent, but the opposite: that its legalization of abortion must be overturned when its factual premise is proved wrong, I need to explain why it is critical that Alabama’s law be next in line before the Supreme Court, and not displaced by a review of one of the other state prolife laws.

The Right Kind of Case: a challenge to any “right” to abortion

Which issue should prolifers place before courts:

[] “All unborn babies are humans (persons)”? That was the issue brought by Rhode Island in 1973 and by Alabama May 16. Or...

[] “Making abortionists murder humanely, or clean their murder rooms, or show girls who they are about to murder, or hurry up and murder before they can hear a heartbeat - none of those restrictions have the effect of substantially reducing abortions, and that certainly isn’t our purpose”? That’s the issue placed before courts by every state abortion restriction in between.

What a difference, legally as well as Biblically, between Alabama’s 2016 prolife law, which said that before a baby is torn limb from limb, he must be killed in a way that causes less pain, and this year’s law! The premise of Alabama’s dismemberment law was that murder ought to be humane. The premise of the current Alabama law is that murder ought to be outlawed.

Which kind of case appears most likely to get legal abortion repealed?

The second kind, according to Pat Robertson. Robertson wowed several liberal news sites with his statement about Alabama’s HB314 that “I don’t think this particular bill is the case I would want to bring into the Supreme Court. You want to get something that you know is going to win. I don’t think that will.” (Complete story: from 9:10 to 11:00.)

(The liberal spin, quoting just the first sentence, was “this is so extreme that even Pat Robertson doesn’t want abortion restricted that much!”)

In other words, don’t even try to win the war. You can’t do it. The enemy is going to invade and torture you all to death. Just try to win a crate of cyanide pills so your church can die quickly.

Prolifers need to understand why a complete challenge to abortion’s legality, like Alabama’s, is the only kind of case that can cause courts to reconsider abortion’s legality. None of the challenges from other states even raise the issue, and courts don’t normally address issues not raised.

The 11th Circuit told Alabama, last year, “The Supreme Court has interpreted the Fourteenth Amendment to bestow on women a fundamental constitutional right of access to abortions.” The Court explained how that terminology from Roe morphed into: “whether ‘the purpose or effect of the (law at issue) is to place a substantial obstacle [or, “undue burden”] in the path of a woman seeking an abortion before the fetus attains viability.’”

The Court said that is “The question in all abortion cases”.

Well, maybe that was true, last year.

Obviously there is no question about that with Alabama’s abortion ban this year! Abortion can face no more “substantial obstacle” than a virtually absolute ban!

But it was true last year, of all the reviews of state laws between Rhode Island and Alabama’s latest. All those state challenges to legal abortion accepted – did not challenge – the Supreme Court’s absurd premise that abortion is a “fundamental right”, and then struggled to argue that their restrictions were not an “undue burden” on baby killing.

Before courts talked about an “undue burden”, they stated almost the same rule a little differently: any restriction of a “fundamental right” must be “the least restrictive means of achieving a compelling government interest.”

That is, some other “compelling government interest” than saving human lives! Something like making abortionists murder humanely, or clean their murder rooms, or show girls who they are about to murder, or hurry up and murder before they can hear a heartbeat.

Here is how the 11th Circuit explained that “saving human lives” is not an acceptable “compelling government interest:

“B. The State’s Interest. One requirement that Casey and its progeny establish, which is carried in the “purpose or effect” language of the opinions, is that a state regulation that applies to pre-viability stage abortions must have a legitimate or valid purpose other than simply reducing the number of abortions.” P. 11-12

After May 16, the 11th Circuit can no longer say “The question in all abortion cases is whether ‘the purpose or effect of the (law at issue) is to place a substantial obstacle” before abortion. There is no question about that, when a law bans virtually all abortions! And when the law, moreover, plainly states that its purpose is to outlaw virtually all abortions! And plainly articulates a new, very different “question” (issue) for the court: unborn babies of humans are in fact humans. (Persons.) Killing them is in fact murder.

That is the legal step I have prayed for. That is what I wrote my book to encourage. (“How States can Outlaw Abortion in a Way that Survives Courts / Court recognized fact finders have unanimously established what Roe said would end legal abortion.” (Free PDF)

Before courts can acknowledge that abortion is the murder of living human beings whose right to life is “guaranteed” by the 14th Amendment, they have to have a case before them where that is the issue. That issue is not present in a case which leaves alone the assumption that murdering your baby is a fundamental right.

History

Although only Rhode Island and Alabama have, to date, been the only states to place that issue before courts, with criminal penalties for abortion, that issue was forefront in thousands of “abortion prevention” cases – where prolifers prevented abortion by “trespassing” - blocking “murder mill” doors – and arguing in court that it was “necessary” to save human lives. Whether those lives saved were “humans/persons” was the only contested issue in those cases – the actions of the life savers was seldom disputed.

Yet those thousands of judges dodged the core issue by following the lead of the judge who had shot down Rhode Island: they said that whether human lives were in fact saved was irrelevant, because Roe had ruled as a matter of law that those babies are not “persons”. Therefore, juries should not even be told about the only contested issue of the case, because juries are “finders of facts”, and “when [constitutionally protected] life begins” is a “question of law”.

That is the opposite of what Roe or any later Supreme Court ruling said; Roe treated the issue as a “fact question” about which “the judiciary...is not in a position to speculate”, but should fact finders “establish” that babies are “recognizably human”, then “of course” abortion must be outlawed by all states.

But judges got away with that reasoning because everyone wanted them to. Prolifers were a minority of the Republican party, and those prolifers who supported “breaking the law” to save lives were a tiny minority of prolifers. Very few wanted legal abortion to end through one of those cases. Most were comfortable looking the other way when court reasoning made no sense.

That is why I have concluded it is necessary for a state to bring a “when [constitutionally protected] life begins” case to court. A case brought by lawmakers instead of “law breakers” is far more likely to have the support of most prolifers. And judges need public pressure on them or they will continue dodging Life. And the only way to mount public pressure on them is for a majority of prolifers to understand, and support, effective legal arguments that prolife lawyers place before courts, so they can recognize when judges dodge the evidence and arguments and rule unconstitutionally.

Yet it is those thousands of embarrassing cases which have provided the court records documenting the consensus of juries and expert witnesses [court-recognized fact finders] that “life begins” at fertilization, which are available for Alabama’s defense now, but were not available to Rhode Island then.