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 the statements of court-recognized "finders of facts" 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"....

Leach: Forsythe tries to kill this hope (see the following section) by claiming it is founded on taking Roe's reasoning out of context. I defend this hope, but not for the reason most "personhood laws" supporters seem to articulate. They seem to believe it is the power of legislatures as masters of law that should logically overturn legal abortion: if the states say babies are people ("persons"), then as a matter of law, they most certainly are.

The problem with this logic is that the 14th Amendment was designed to end slavery, which Southern states had "as a matter of law" legitimized by dehumanizing blacks. Courts really are empowered by the 14th Amendment to stop states from trampling the "fundamental rights" of people within their borders. Which gives courts some power to define fundamental rights when states define them in a way that tramples rights; and it gives courts some power to define who is "human" or a "person" when states dehumanize people.

However, state legislatures and Congress are court-recognized fact finders, aka. "finders of facts", along with juries and expert witnesses. Legislatures "find facts" in sections of laws which explain the principles behind the prohibitions that follow. These sections, which include no penalties of their own but only explain the penalties that follow, are called by slightly different names in different states. Sometimes, "Legislative Findings", or "Findings of Facts". Judges act as "fact finders" in trials where no other fact finders testify, but they themselves consider their own authority to find facts inferior to that of official "fact finders". One good reason is that official fact finders are trusted to incorporate their observations of the entire world around them in their reports to the court, while judicial ethics require judicial findings to be strictly limited to the evidence presented by parties to the case before them.

Here is an example of the deference courts give legislatures as fact-finders:

“..the existence of facts supporting the legislative judgment is to be presumed...not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators....” U.S. v. Carolene Products, 304 U.S. 144, 152 (1938).

It is this status of legislatures as official court-recognized fact-finders that give legislatures greater authority than courts to establish that babies are people, both through the holding of Roe to that effect, and through the obvious basic of Rule of Law that we can't continue to legalize murder even after we legally recognize it as murder.

"But wait", you ask, "if our system lets state legislatures establish that babies are people through their authority as fact finders, couldn't Southern states have simply found that blacks are not fully human, and continued slavery legally? After all, there were a lot of otherwise smart people in those days who didn't believe blacks were 'people in the whole sense'. Including President Lincoln himself, according to some theories!"

What is relevant to abortion about that point is that yes, they could have, logically, so what stopped them? That is, besides threats like sending Northern troops to occupy the South again if they didn't pass the Amendment? What, today, if states have any power to define who is human and who is not, keeps states from enslaving undocumented immigrants, for example?

Facts are more stubborn than laws. Facts can change laws, both by crying out to lawmakers to get in touch with reality, and by making laws unenforceable. But laws can't change facts.

If legislatures' claims contradict reality as reported by other fact finders, courts retain the power, as the quote above shows, to disregard something obviously erroneous or outdated. But in the case of abortion courts would have no basis for such a finding since not one American legal authority has ever said protectable "life begins" any later than fertilization, nor can any basis for such a claim be imagined.

It helps that 38 states, as well as Congress, have now treated the unborn as fully human, in their "unborn victims of violence" laws. Although facts are not certified in the same way Constitutional Amendments are, it is compelling, if not legally significant, that 38 states is the number of states needed to pass a Constitutional Amendment. What is more compelling is that no state, nor any other jury, expert witness, or judge, has affirmed the opposite.

As slavery drew to a close, states were fairly evenly divided on whether blacks merited fundamental rights. Not so with abortion. Today, 38 states say babies merit fundamental rights, and 12 states apparently cannot tell.

Later in Forsythe's article he denies that reality has any business in the abortion debate; facts have no power to topple legal abortion. My responses to that claim are in that section.

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

Forsythe: There are several fundamental problems here [with thinking a state "personhood" law can end legal abortion]. 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.

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 continues:

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.

But "personhood" legislation CAN satisfy the requirements for legal abortion's "collapse"

Forsythe: 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...to "collapse"..."legal"...abortion."

Leach: Clearly wrong? Forsythe doesn't explain what is so clearly wrong about the article he targets, so here's a wild guess: (1) the article assumes people are people. "Clearly wrong." (2) Just because justices are "in no position to speculate" about "when life begins" doesn't mean they don't know "when life begins". "Clearly wrong."

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. (Continued next section)

"Exceptions" do NOT treat the unborn as less than human, despite Roe's n. 54

Roe's Notorious Footnote #54 argues that when state legislatures exempt mothers who get abortions from prosecution for murder, even when the reason for the abortion was to save the life of the mother, that proves those legislatures don't really believe unborn babies are "persons in the whole sense". A large segment of prolifers believes this reasoning of Roe v. Wade is correct, and because of it, they will not support any prolife legislation that allows either of these two "exceptions".

The article which Forsythe analyzes takes this position. Forsythe, by contrast, assumes the Roe justices didn't seriously believe that nonsense; they were just being sarcastic. The footnote is mere gratuitous derision. My take on Roe's Notorious Footnote n. 54 is that Roe does seriously regard its footnote as perfectly logical, but the footnote is not correct; those two "exceptions" are demanded by law, common sense, and even Scripture. Roe's footnote does need to be addressed in any serious legal challenge to legal abortion; fortunately it is not hard to disprove it.

Forsythe: 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.

Leach: You can't "lampoon" a line of reasoning with an alternative line of reasoning so absurd that you don't believe it yourself. Of course Blackman thought he had found a successful argument. Blackmun (the author of Roe v. Wade) was "not seriously entertaining personhood"? Well, he doesn't impress me as very prolife. But he was very seriously refuting "personhood" of babies, using every bit of reasoning, logic, and evidence he could force to his purpose. It should be obvious that he thought his reasoning in n. 54 was a perfectly logical argument that states with those "exceptions" really didn't regard babies as human as their mothers. Any hint of a sneer in this logic is only a penumbra of the devil laughing at you, thinking he has you fooled. It doesn't prove the devil doesn't believe his own lies. He really thinks he came out on top, with this one. Even God couldn't answer him, he probably figures.

In any serious court challenge to legal abortion, Roe's notorious footnote 54 needs to be addressed on its merits. It has to be refuted. We can't get by just dismissing it as sarcasm, or as "being ironic", or something too illogical to even address. The following response to n. 54 is borrowed from the wiki article on this site, "Abortion Law Alabama".

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 familiar to judges, lawyers, and lawmakers.

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 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, cited in another Roe footnote, had fraudently depicted as looking like animal fetuses

Let's look again at some interesting Forsythe logic with which I partly agree:

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.

This point is addressed later on in the article where Forsythe says facts have no power in a prolife case.

The part of Forsythe's preceding statement that I am not sure about is whether any prolife indeed thinks a state personhood law will redefine the 14th Amendment. For such an assumption to even occur to Forsythe, he must think somehow that the 14th Amendment is correctly interpreted by Roe v. Wade to not protect the unborn. I can't imagine he thinks that, but I can't think of any other way to arrive at his accusation of the Personhood movement as a movement to redefine the 14th Amendment. But that is so absurd that I will just have to admit that whatever clear point Forsythe may have in this accusation, is not clear to me, so if it is clear to any reader I will count it a favor if you will explain it to me - along with any other feedback you have.

Establishing unborn "personhood" can't end legal abortion in only a few states

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

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.

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.

Leach: I am not even sure a constitutional amendment is an appropriate way to end legal abortion. What other constitutional amendment had for its purpose to establish a fact? Slavery was not ended by an Amendment that stated as a fact that blacks are fully human, but by a mandate that laws should treat everyone the same. True, courts below SCOTUS said in thousands of cases that Roe made unborn personhood a "matter of law", making their condition in reality irrelevant. But that is the opposite of what Roe said, and it is the opposite of common sense. It is the fact that abortion kills fully human beings that makes it legally recognizable as murder. So surely the consensus of every category of court-recognized fact finders, in every category of court-recognized fact finders, that we already have, is more powerful legally than any future constitutional amendment could be. Which makes it especially tragic that prolifers have not yet cited this evidence in a court review of a prolife state law, thinking their hands are tied until they can get enough support for a constitutional amendment.

Forsythe is correct that a single state, citing only its own authority, can’t change the 14th Amendment. But the consensus of 38 states, dozens of juries, thousands of expert witnesses, Congress, and several individual judges, can certainly establish the fact upon which hinges application of the 14th Amendment!

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

The article targeted by Forsythe says after a personhood state law, "abortion is over in that jurisdiction." The thing that is wrong with this statement is not mentioned by Forsythe, nor have I ever heard any other prolifer notice this, in all legal abortion's 47 years: the only way legal abortion will end, that I can imagine, is for courts to address the court-recognized fact finder consensus that abortion is legally recognizable as murder. But once they do that, how will they allow murder to remain legal in any state?

Nor does reality shape-shift into something else when it crosses state lines, which would allow one state to declare that babies are humans while in the next state no one knows. An unrefuted consensus of over 2/3 of states is about as much evidence as humans are ever going to see. But a single state? Or what we are really talking about: a legal defense that cites only one witness and does not call the other 37? Not so compelling.

Perhaps this is what Forsythe means by "It simply means that (because of our system of federalism) it will not - it cannot - establish 14th Amendment personhood."

NO SCOTUS judge ever rejected protection of the unborn as people

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.

Leach: No judge has mentioned it, but to say every judge has rejected it simply is not true. Were it true, it would be helpful if Forsythe would quote where he thinks they even implied it, much less specified it.

In fact, I have read the dozen or so major prolife rulings stem to stern, looking specifically for what those two have said about recognizing babies as persons. I just don't see where the issue has occurred to them. One cannot "reject" ideas that one has never thought of. I certainly find no indication that they have considered that factual evidence of Life might indeed trigger the "collapse" of legal abortion, and rejected it.

Not only is it untrue that all judges have rejected it, but it is untrue to say any judge has rejected it! The subject simply hasn't been mentioned.

Nor do I know of any time when any state, whose prolife law was reviewed by SCOTUS, when that state made any attempt to present the evidence that babies are fully human from the beginning. Without that evidence being presented in court, it is not considered ethical for judges to bring in evidence or reasoning of their own which neither party to the case had thought of nor had opportunity to respond to. (Of course judges do it all the time but they consider it unethical.)

Therefore the notion that the evidence of fact finders that babies are people could ever sway a judge, is an entirely untested theory.

After 47 years, it is time for a test.

Promising to obey Roe v. Wade is NOT the way to build a case that challenges legal abortion!

Second, these proposals would be better designed if they followed the Missouri statutory preamble enacted in the 1980s:

1. The general assembly of [Missouri] finds that:

(1) The life of each human being begins at conception; (2) Unborn children have protectable interests in life, health, and well-being; (3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.

2. Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state.

3. As used in this section, the term "unborn children" or "unborn child" shall include all unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.

Since the U.S. Supreme Court reviewed the Missouri preamble in the 1989 Webster case and found it constitutional, the preamble has been applied by Missouri courts to extend protections for unborn children in non-abortion situations.

But Casey, in 1992, did NOT say it no longer matters whether babies are in fact as human as any judge

Fourth, legislation is needed that will protect the unborn, but there's no reason to believe such legislation will be an effective vehicle to challenge Roe, given the Court's current composition. And while public education about fetal development will always be important, the notion that such facts will have a significant impact on the current justices is based on a profound misunderstanding of why most of those justices support Roe.

The emphasis on the unborn child completely overlooks the fact that the Court's rationale for the abortion "right" shifted dramatically in the 1992 Casey decision, where it became a sociological rationale that women need abortion as a backup to failed contraception. Facts about fetal development have no bearing on this sociological rationale. The real challenge for pro-lifers in 2009 is to effectively address the assumption that abortion is good for women.

But challenging legal abortion does NOT require judges so prolife that they will end legal abortion even in the continued vacuum of evidence [in the legal defenses of states] that babies are people

Finally, with the confirmation of pro-abortion Justice Sotomayor, and the likelihood that President Obama will have the opportunity to nominate more pro-abortion justices in the next three years, there is no chance that the Court will reconsider Roe as long as Obama is in office. Justice Scalia (who should know) plainly told a legal audience in Europe a few years ago that there was not a majority on the Court to overturn Roe. That's even more certain today.

There are other goals that are more important - and more achievable in the current environment - than an illusory test case to "challenge Roe" based on questions that the current justices simply aren't asking.

This concern is not entirely outdated since this article was written, with President Trump's appointments. Forsythe observes elsewhere that not one SCOTUS judge, not even Scalia or Thomas, have indicated they could ever recognize the unborn as fully human people. Rather, they have written as if such a thing can't be pinned down, so it should be up to states to make their own "value judgment"! They actually wrote in 1992 and apparently haven't written anything more promising since:

There is, of course, no way to determine [whether the unborn are human] as a legal matter; it is, in fact, a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so. Planned Parenthood v. Casey, 505 U.S. 833, 982 (1992) (Concurrence/dissent of Scalia, White, Thomas)

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

Conclusion

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.

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.