Forsythe

The Myth that "Babies are People" Evidence can Trigger Roe's "Collapse Clause" is a Myth
(Repeat that sub-headline three times and it should come clear. If not, email me and I'll work on it some more.)

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I have written extensively about Clarke Forsythe's (head of Americans United for Life) pessimism about any hope of confronting legal abortion head-on in court. Links to my other writing are at [AUL Missing Opportunity] and at [Abortion Law Alabama]. Also on page XIX of my book, "How States can Outlaw Abortion in a Way that Survives Courts". The analysis here focuses on a 2009 article by him which says factual evidence that babies are in fact as human as the rest of us find no sympathy in Roe v. Wade. There is no "collapse clause" in Roe which is triggered by such evidence, he says.

This article was started by Dave Leach R-IA Bible Lover-musician-grandpa (talk) 02:33, 23 January 2020 (UTC) (Contributions, corrections, comments by other authors are separated with horizontal lines and are signed)

[A link to Forsythe's complete Article]

Roe DID say "we don't know when life begins"

Forsythe: The myth has been widely reported that Justice Blackmun stated in Roe that "we don't know when life begins."

Leach: Myth? The justices actually said if doctors and preachers can't agree when life begins, how are mere relatively ignorant judges supposed to know? Here's how Roe said it: "When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” Roe v. Wade, p. 159.

Forsythe: Some state legislatures have come to believe that they can answer that question by asserting that life begins at conception. What Blackmun actually wrote (pp. 156-157 of the Roe opinion) was: "The [state of Texas] argue[s] that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, [Jane Roe's] case [for legal abortion], of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."

Leach: This is the infamous "collapse clause" of Roe v. Wade, which is quoted in the personhood fundraising letters that are mailed out every two months for decades. It does not as explicitly say judges don't know when life begins, but Forsythe quotes it as if he doesn't know about the more explicit statement. But this "collapse" clause just as definitely says, indirectly, that the judges "cannot tell", in the words of the Pharisees in Matthew 21:27.

Here are five things we can know from Roe's "collapse" clause, listed in my book "How States can Outlaw Abortion in a Way that Survives Courts", p. 39:

If this suggestion of personhood [of unborn babies] is established, 
the...case [for legalizing aborticide], of course, collapses, 
for the fetus’ right to life is then guaranteed specifically 
by the [14th] Amendment. Roe v. Wade, 410 US 113, 156

Roe’s “Collapse”.

This short “collapse” clause tells us five things:

(1) “Collapse” is possible. “Establishment” of the unborn as humans/persons, to an extent that SCOTUS will legally recognize it, is possible, and will transfer “constitutional protection” from people who kill babies to babies. Roe did not rule that unborn personhood could never be established by any other authority than itself. Roe’s “if” explicitly acknowledges both the possibility, and Roe’s own uncertainty whether it would happen.

(2) Authority greater than SCOTUS? The unspecified authority/agency of this “establishment” is not SCOTUS. Some other authority is better able or more qualified, than SCOTUS, to “establish” personhood in a way that could “collapse” the case for legal abortion.

Since there can be no greater legal authority than SCOTUS, this can only mean an authority over facts, an area where SCOTUS does indeed routinely defer to fact-finders as having superior authority.

It may be supposed that an amendment to the Constitution is what the Roe justices were thinking of as an authority superior to that of SCOTUS.

Well, maybe. But there is something about an amendment to the Constitution establishing unborn personhood that argues against it being thought of by the Roe justices, because it argues against its appropriateness to address abortion: no other Constitutional Amendment has attempted to establish a fact as true, as a matter of law.

It is therefore hard to imagine that a Constitutional Amendment can have greater power to establish the fact that all unborn babies are humans/persons, than today’s consensus of court-recognized fact finders that we already have.

(3) Authority less in doubt than SCOTUS? What must be “established” must be a fact question about which it is possible for the Roe court to be in doubt – not a question of American law, upon which SCOTUS is the world’s expert and cannot possibly be in doubt.1

(4) Evidence is welcome. Fact finders (ie. juries, legislatures, or expert witnesses) are invited to “establish” this fact if they can – SCOTUS’ alleged ignorance cannot rationally or legally be made an obstacle to letting fact finders “establish” this fact - although we are not told which of them, or how many of them, must agree before SCOTUS will consider the fact established “enough”.

(5) As ignorance passes, so must abortion. Abortion’s legality and aura of “constitutional protection” can continue only in the absence of this “establishment” – only as long as uncertainty is alleged whether the unborn babies of human mothers are humans.

Roe’s “of course” acknowledges that it is obvious that abortion’s legality cannot survive knowing it is murder. That is, alleged ignorance cannot rationally or legally be made an obstacle to letting fact finders “establish” this fact. If there is evidence, it must be heard. Because it is unthinkable that we would knowingly want the blood of innocent human lives on our hands. So if the babies of human mothers turn out to be humans, we need to protect them.

Many abortion supporters hope, and prolifers fear, that even after our nation’s laws and courts officially acknowledge that abortion is the legal equivalent of murder – that the babies abortion kills are humans/persons, it will be possible, even likely, for other rationales to replace Roe’s rationale – Roe’s official ignorance about “when life begins”.

Appendix G deals with some of them inside and outside case law and shows this is simply impossible. It is just as obvious today as when Roe’s “collapse” clause began with “of course”, that SCOTUS can’t decide who lives and dies as a question so exclusively of law as to render irrelevant whether SCOTUS’ rulings protect murder.

There is another possible, though desperate, way to interpret "If this suggestion of personhood is established...." What if the justices meant "If this suggestion of personhood is established [Texas' argument goes, which of course is a hypothetical that can never happen]...."? That very likely was in the justice's minds. They most likely did not think about, or foresee, the kinds of cases that would arise that could very well "establish" that fact.

But that possible interpretation does not qualify as a binding "holding" of Roe, because the ruling never spelled out such an idea. Nor did Roe identify the "if" clause as an impossible hypothetical, by ever specifying that unborn "personhood" could never be "established". The facts are that (1) the ruling, throughout, treated "when life begins" as a matter which justices are less qualified than court-recognized fact-finders to establish, (2) Roe explicitly said in the "collapse" clause and in the following strong statement that SCOTUS "would never" want to justify murder, and (3) had SCOTUS actually said the fact that abortion is the murder of human beings, SCOTUS would have eliminated the reason for its very existence, which is to restrain crime. Were SCOTUS to force states to protect the greatest of crimes, SCOTUS has no reason to exist.

 
“...we  would not have indulged in statutory interpretation 
favorable to abortion...if the necessary consequence 
was the  termination of life entitled to 
Fourteenth Amendment protection.”
- Roe v. Wade 

Forsythe: Nevertheless, the urban legend has spread throughout the Web.

Leach: The "urban legend", Forsythe means, that when Roe says judges are "in no position to speculate" about "when life begins", that Roe said judges don't know when life begins. I admit I was confused myself. I am glad to have the difference explained. Oh wait - the difference wasn't explained.

But factual evidence WILL trigger legal abortion's "collapse"

Forsythe: The standard description [of this "urban legend"] is captured in the following excerpt from a website called "Christian Life and Liberty":

According to the 1973 Roe v. Wade decision, personhood "collapses" the abortion "legal" ...argument:

The 1973 US Supreme Court Roe v. Wade decision instructed that if "personhood" for the "fetus" was established at fertilization, with no exceptions, then the [so-called] "legal" [sic] argument for abortion "collapses"....

There are several fundamental problems here. First, this is a classic case of reading the language out of context. The phrase "suggestion of personhood" in Blackmun's opinion clearly refers to the earlier phrase "within the language and meaning of the Fourteenth Amendment." It does not mean "personhood" in any broader medical, moral, or legal sense. Blackmun is emphasizing the meaning of "person" within the 14th Amendment.

"Persons" means human "people" in the 14th Amendment just like everywhere else

Leach: Is Forsythe saying the word "person", in the 14th Amendment, has a different meaning than it has everywhere else? The 14th Amendment doesn't have any special meaning for "persons", aka "people". It says every human who is subject to human laws needs to be treated the same by those laws.

Here is Section 1 of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state 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.

Leach: There is a weird but very widely accepted theory about the word "persons" in the 14th Amendment. Maybe Forsythe believes it, which would explain why Forsythe thinks the word "persons" changes its meaning as it moves from all other literature to the Constitution. The theory goes that the word "persons", when it is in the 14th Amendment, doesn't mean all humans. There are humans who are not "persons", the theory goes. Babies may be humans before and after they are born, but they aren't "persons" before they are born. Well, they were, before 1973, but not after.

This confusion began with the above "collapse" clause, which called the "personhood" of unborn babies only a "suggestion". That has led prolifers to think Roe created a distinction between baby humans and "persons". But Roe explicitly said humans are persons. Roe did not say babies are humans but not persons. When Roe defined "persons", part of the definition was "recognizably human".

“These disciplines variously approached the question in terms of the point at which the embryo or fetus became ‘formed’ or recognizably human, or in terms of when a ‘person’ came into being, that is, infused with a ‘soul’ or ‘animated.’” Roe v. Wade, 410 US 113, 133.

A more reasonable interpretation of that strange qualifier, than that there are humans who are not persons, is that the justices were deceived by fraudulent illustrations of babies in Dorland's Illustrated Medical Dictionary which made human fetuses look like pig fetuses. The illustrations were cited in a Roe footnote. They are reproduced in my book, on page 167.

From my book, p. 41:

The 14th Amendment “equal protection of the laws” is for all who are in fact humans/persons. Had it been only for those who are legally recognized as human, we could still have slavery simply by declining to legally recognize a discrete class of people as fully human.

All that pro-slavery judges would need to do would be to rule that blacks are only 3/5 human according to the Constitution. Or that immigrants, already treated as less than “persons in the whole sense” by classifying people as “illegals” for a variety of circumstances beyond their control, for which they are therefore not culpable yet may still be prosecuted. So because “they were never treated by our laws as persons in the whole sense”, they may be enslaved, we might then reason.

Forsythe: Second, no state can - by statute or constitutional amendment - change the meaning of the 14th Amendment to the federal constitution. The 14th Amendment can be changed only by another federal constitutional amendment or by the U.S. Supreme Court's changing its interpretation of the 14th Amendment.

Leach: Who said anything about changing the meaning of the 14th Amendment? Does Forsythe think - pardon the wild guess - that if we read into the 14th Amendment rights of "persons", that the Amendment means to protect the rights of all humans, that we would be changing the meaning of the Amendment?!

Probably.

Thus, the following extrapolation from Blackmun's language (on the same website) is clearly wrong:

Establishing in law (by statutory change to the state's code of laws, or by a state constitutional amendment) legal "personhood" for pre-birth human beings, at fertilization, with no exceptions, satisfies the requirement spelled out in the infamous 1973 Roe v. Wade decision, to "collapse" the [so-called] "legal" [sic] argument for abortion."

Leach: Clearly wrong? Apparently because the article in Forsythe's gun sights assumes that humans are people, and that justices who are "in no position to speculate" about "when life begins" don't know "when life begins". Pardon the wild guess. Forsythe doesn't explain what is so clearly wrong about the article he targets, so I'm guessing as well as I can.

Not that I think the article is entirely correct at this point. But what I see that is weak about this statement is not mentioned by Forsythe. I see two minor errors with the statement:

(1) the article assumes that the laws or constitution of a single state can trigger Roe's "collapse". I'm not so sure. In the 1989 Webster case, O'Conner said "When the constitutional invalidity of a State's abortion statute actually turns upon the constitutional validity of Roe, there will be time enough to reexamine Roe, and to do so carefully.” That certainly says the findings of a single state COULD topple legal abortion, but the Roe case itself treated the "personhood" statement of Texas as a mere "suggestion". Now 38 states recognize unborn babies as fully human, in their Unborn Victims of Violence Laws. That should be enough.

(2) The article claims "exceptions" de-legitimize a prolife law. This confusion emanates from Roe's Notorious Footnote #54.

Forsythe says this is "clearly wrong", but I have stared at this for quite a while and while I don't doubt that Forsythe must be a generally very intelligent fellow, I can't follow how that got into this article. Normally when an article is poorly written I don't write about it to embarrass the author, but the problem when a highly trusted authority writes an occasionally obscure article, people tend to be intimidated - they think since the writer is obviously very smart, but cannot be understood, it must be the reader's intelligence which is lacking; so the reader may be intimidated into accepting conclusions without understanding the logic for them. That is very unfortunate here because these conclusions are very discouraging. And, as I will attempt to show, clearly wrong. </span>

Third, the misguided argument then quotes footnote 54 of Blackmun's opinion, without realizing that Blackmun is being ironic:

"Exceptions" to legal "personhood" are unconstitutional, as explained in the text of the 1973 Roe v. Wade decision, and in a Justice Blackmun footnote therein [emphasis added]:

"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 always exists . . . 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?...."

Blackmun is not seriously entertaining personhood; it's clear from the context (and from the rest of the Roe opinion) that he rejects it as nonsense. He is not saying that exceptions are "unconstitutional" and never uses such language. The urban legend has it exactly backwards: The Texas statute does not define the meaning of the 14th Amendment; the 14th Amendment defines the validity of the Texas statute.

If Blackmun had seriously entertained the notion that the 14th Amendment protected the unborn, the Texas statute would not have impeded him; the Court could have struck it down. Blackmun set up his sneering contradiction only after concluding that the 14th Amendment did not protect the unborn. He thought his manufactured scenario would lampoon Texas's case.

Thus, the following extrapolation on the website is also obviously wrong:

"Personhood" legislation, by statutorily vesting legal "personhood" at fertilization for ALL human beings, satisifies [sic] the Roe formula published over 36 years ago.

The key legal issue presented in the very text of Roe, necessary to unravel the entire Roe framework, is statutorily vesting legal "personhood" at fertilization for ALL human beings, with no exceptions. . . .

In other words, pass "personhood" legislation in your state, as a bill, or as a constitutional amendment, and according to the U.S. Supreme Court Roe v. Wade decision itself, [so-called] "legal" [sic] abortion is over in that jurisdiction.

Basing state personhood amendments on extrapolations of Blackmun's language in Roe is futile. This does not mean that establishing some form of legal personhood in the states is not a worthy goal. It simply means that (because of our system of federalism) it will not - it cannot - establish 14th Amendment personhood or set up a test case to overturn Roe.

First, not one justice on the current Supreme Court supports the proposition that the unborn are protected as "persons" within the meaning of the 14th Amendment. Not one. All have rejected it, explicitly or implicitly.

---

Refuting N. 54. Alabama’s HB314 did not dodge Footnote 54, and should not have. There are sound legal, logical, and Biblical reasons for those two exceptions. The only possible logical response to N. 54 is to simply explain to judges who surely already know better, that the legal reason for stiffer penalties for abortionists than moms is (1) the greater culpability of adult doctors than young teen moms, (Luke 12:47-48) and (2) to get moms to testify against abortionists; and the legal reason for a “life of the mother” exception is because while we are inspired by people who give their lives for others, we can’t require them to by law. (Deuteronomy 20:8, God calls all to be heroes, but doesn't coerce them by law; he lets cowards retreat without penalty.)

These principles are the basis for legitimate exceptions to all kinds of laws. These principles are so familiar to judges, lawyers, and lawmakers, that Clark Forsythe was justified in suspecting the motives of Justice Blackmun in writing that notorious footnote.

Forsythe on N. 54. A curious spin on Footnote 54 was penned by Clarke Forsythe, who heads Americans United for Life, and was mentioned in the Foundation for Moral Law amicus.

The FML amicus said Forsythe’s article “conclud[ed] that personhood laws would not directly conflict with Roe v. Wade and Planned Parenthood v. Casey”. That article is not online, but another article by Forsythe that makes the same point is. In it, Forsythe dismissed footnote 54 as gratuitous derision:

...the [prolifer’s] misguided argument [which was like that of the FML amicus] then quotes footnote 54 of Blackmun's [Justice Blackman, author of Roe] opinion, without realizing that Blackmun is being ironic...Blackmun is not seriously entertaining personhood; it's clear from the context (and from the rest of the Roe opinion) that he rejects it as nonsense....Blackmun set up his sneering contradiction only after concluding that the 14th Amendment did not protect the unborn. He thought his manufactured scenario would lampoon Texas's case.

Roe does not say there is anything wrong with “exceptions”, Forsythe wrote.

Blackman is not saying that exceptions are “unconstitutional” and [he] never uses such language. If Blackmun had seriously entertained the notion that the 14th Amendment protected the unborn, the Texas statute would not have impeded him; the Court could have struck [the two exceptions] down.

Well, of course, if babies were not people, then not only are “exceptions” OK, but “exceptions” should be the rule, as Roe made them the rule. But what about the logic given in Footnote 54 and pursued by many prolifers, that our exceptions contradict our witness that babies are people? Forsythe wrote:

The urban legend has it exactly backwards: The Texas statute does not define the meaning of the 14th Amendment; the 14th Amendment defines the validity of the Texas statute.

Indeed, the degree to which laws fail to give “equal protection” to all humans is no evidence of the degree to which people are not humans! “Equal protection of the laws” for all humans is the 14th Amendment’s “gold standard”, which all other laws struggle to reach. The various failures of our laws to achieve perfect justice is no evidence that anyone has less right to justice. The imperfections of lawmakers, judges, and police in treating some people as “more equal than others” does not prove some people really are “more equal than others”!

Billions of examples may be found of laws not protecting everyone equally, without one example (I hope) of judges taking this for evidence that people are not, in fact, equal. (Outside abortion.) It is absurd to imagine that because laws do not protect everyone equally, therefore not everyone is equal.

Personhood is acknowledged by any valid law. But it is not created by any law!

Roe never argued that people become something less than people when laws don’t treat them unjustly! That, fortunately, was not the purpose of Roe’s inquiry. Roe’s purpose was to look for evidence, in the absence of explicit statements, that legislatures – fact finders – regarded the unborn as fully human.

The quibble of Roe was not whether babies are “persons” or merely “humans”, but whether very young babies depicted in Dorland’s Illustrated Medical Dictionary as indistinguishable from pig fetuses are “recognizably human”.

The reasoning of the personhood movement indeed seems to stumble over this point. As if babies are turned into “persons” within the borders of a state by its legislature outlawing abortion without exceptions – a transformation accomplished by the magic of Roe – rather than babies already being people by the Creative Word of Almighty God from before fertilization, (Jeremiah1:5) no matter what any tyrant says about it, and even if they cross the border into another state.

Forsythe correctly says states don’t change law; but he does not appreciate that states DO establish facts. Perhaps he does not consider that the Supreme Court treats “when [constitutionally protected] life begins” as the domain of fact finders.

Here Forsythe tells prolifers none of their efforts can succeed (until, he says elsewhere, we pass a Life Amendment to the U.S. Constitution):

[Prolifers think if you] “pass ‘personhood’ legislation in your state, as a bill, or as a constitutional amendment, and according to the U.S. Supreme Court Roe v. Wade decision itself, [so-called] ‘legal’ [sic] abortion is over in that jurisdiction. [That hope is] futile...(because of our system of federalism) it will not - it cannot - establish 14th Amendment personhood or set up a test case to overturn Roe.”

He is correct that a single state, citing only its own authority, can’t change a law. But the consensus of 38 states, dozens of juries, thousands of expert witnesses, Congress, and several individual judges, can certainly establish a fact!

Although N. 54 reasons like someone who doesn’t understand law, Forsythe is too quick to dismiss the reason for it given in Roe. Blackmun’s said his purpose in noting Texas’ two exceptions was part of his 65 page review of the scarcity of clear evidence from court-recognized fact finders that unborn babies of humans are “recognizably human” even from the development of their first visible features, which Dorland’s Illustrated Medical Dictionary had fraudently depicted as looking like animal fetuses.

Yes, individual states can clarify facts, though probably not if the only evidence they cite is their own say-so.

For my complete interleaved response to that and other articles by Forsythe, see AUL Missing Opportunity of Lifetime (60 million lifetimes)

If the fact that unborn babies are humans is untrue, then of course killing nonpersons really isn’t murder, but rather a fundamental right of a woman. Conversely, if as a "matter of law" only, the unborn were humans/persons with a constitutionally protected “right to life”, but were in fact tumors threatening their human hosts, respect for law would suffer as much as it does now. In either case, reality is the standard by which the law is judged; law is not the standard by which facts are determined. Law needs to get in step with reality, because reality is not disposed to get in step with law.