Statement 5 + Footnotes

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REVERSING LANDMARK ABOMINATION CASES

Saving Babies from judges & voters
Saving Souls from ‘Scrupulous Neutrality’ about Religion

by proving in courts of law and in the Court of Public Opinion that:

 The right to live of a baby and of a judge are equal
 The Bible & reality-challenged religions are NOT equal

A strategy of Life that relies on the Author of Life
for pro-life, pro-Bible Lawmakers, Leaders, Lawyers, and Laymen

by Dave Leach R-IA Bible Lover-musician-grandpa (talk) 18:11, 15 October 2023 (UTC)

Statement of Facts #5: Legislatures should regulate abortion, as Dobbs held, just as legislatures regulate the prosecution of all other murders.

But not in the sense of absolute discretion to leave wholesale murders of a supposedly unwanted group of humans completely unregulated. That interpretation of Dobbs’ holding is premised on a “mistake of fact”, which is an official exception to Stare Decisis. ^[1]

The “Mistake of Fact” that is the premise of letting voters decide whether to continue judge-approved genocide according to the “value” they place on little people is that the humanity of babies of humans is either unknowable or irrelevant. That premise was explicit in Roe and Casey, and implicit in Dobbs. ^[2]

That is an “erroneous factual premise”. The fact that little unborn humans are humans is neither unknowable ^[3] nor irrelevant. It is verifiable and dispositive. ^[4]

The consensus of court-recognized fact finders cures that knowledge deficit, canceling that interpretation of Dobbs’ holding, while reinforcing Dobbs’ other two holdings that “The Constitution does not confer a right to abortion” and “Roe and Casey are overruled”, and requiring the outlawing of baby killing in every state. ^[5]

FOOTNOTES

↑ 1 More about “a ‘mistake of fact’...is an official exception to Stare Decisis protection.”
     Justice Brett Kavanaugh, during his confirmation hearing, described Roe v. Wade as “precedent upon precedent”, yet when asked by a Democrat about a precedent that Democrats don’t like, (Citizens United), he explained that a “mistake of facts” is one of Stare Decisis’ official grounds for overturning precedents. (Stare Decisis means “Let the decision stand”. Precedents should be followed except when their errors are clear.) Here is an excerpt:
     Whitehouse: “The hypothetical problem that I have has to do with an appellate court which makes a finding of fact. Asserts a proposition of fact to be true. And upon that proposition hangs the decision that it reaches. The question is, what happens when that proposition of fact...turns out not to be true?” ...
     Kavanaugh: “[This is] wrapped up in a question of precedent and Stare Decisis. And one of the things you could look at, one of the factors you could look at, how wrong was the decision, and if it is based on an erroneous factual premise, that is clearly one of the factors... Mistakes of history. Sometimes there are mistakes of history in decisions and mistakes of fact.” (Day 3 of the Brett Kavanaugh hearings. Beginning at from 4:52:11 to 4:53:50 of the video posted at www.youtube.com/ watch?v=mSyWoxGbpFg)
     Connie Weiskopf and Kristine L. Brown, in the amicus brief they filed in Dobbs v. Jackson, said “As Justice Gorsuch wrote in his Ramos concurrence, ‘stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true.’ Ramos v. Louisiana, 590 U.S. __, __ (2020) (slip op. at 23).” [www.supremecourt .gov/DocketPDF/19/191392/185063/20210727174713396_FINAL_Brown_Weiskopf_Dobbs_Amicus.pdf]
↑ 2 More about “The [mistaken] premise... that the humanity of babies of humans is either unknowable or irrelevant...was explicit in Roe and Casey, and implicit in Dobbs”
     These quotes are repeated from earlier footnotes to Finding #3: notes #1, 8, 10.
     Dobbs v. Jackson explicitly ignored the central inquiry:
     There is ample evidence that the passage of these laws was...spurred by a sincere belief that abortion kills a human being. Many judicial decisions from the late 19th and early 20th centuries made that point....One may disagree with this belief (and our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests), but even Roe and Casey did not question the good faith of abortion opponents. See, e.g., Casey, 505 U. S., at 850 (“Men and women of good conscience can disagree . . . about the profound moral and spiritual implications of terminating a pregnancy even in its earliest stage”). DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION 945 F. 3d 265
     Planned Parenthood v. Casey said the central inquiry is beyond human knowledge:
     “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.” Concurrence/Dissent by Scalia, Thomas, White. Planned Parenthood v. CASEY, 505 U.S. 833, 982 (1982)
     Roe v. Wade said if doctors and preachers can’t resolve the central inquiry, mere judges certainly can’t figure it out:
     “Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. 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, 410 U.S. 113, 159 (1973)
     In other words, Roe passed on “the central inquiry”, as the Center for Religious Expression observes:
     “The Roe Court demurred on the central inquiry. When the case was decided, the presence of a life inside a mother’s womb was a debatable topic, largely informed by religious and philosophical perspectives. [Roe passed] on “the difficult question of when life begins,” referencing differing belief systems). (Amicus brief filed in Dobbs v. Jackson by Center for Religious Expression. www.supremecourt.gov/ DocketPDF/19/19-1392/185542/20210802 162418144_19-1932%20Amicus%20Brief%20of%20Center%20for%20Religious%20Expression.pdf)
     An interesting word, “demurred”, was used by the Center for Religious Expression. It means whether or not the facts alleged are true, there is no case. No legal grounds to justify a prosecution. (See the variety of descriptions of the word at www.legaldictionary.net/demurrer/, www.en.wikipedia.org/wiki/Demurrer, www.dictionary.law.com/Default.aspx?selected=487, www.britannica.com/topic/demurrer, and www.dictionary.law.com/Default.aspx?searched= demurrer&type=1.)
     Roe said “We need not resolve the difficult question of when life begins.” As if that fact is irrelevant. As if whether or not it is true that babies of people are people, that is no legal reason to let states protect them.
     But the complete quote, above, doesn’t say “we need not resolve the...question” because it doesn’t matter, but because the justices thought themselves incompetent to establish the fact. Doctors, philosophers, and theologians can’t agree, so how can mere lowly Supreme Court Justices know if babies of humans are humans?
     “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
     That interpretation is consistent with, and demanded by, the other notorious quote from Roe, found a few times in this book and common in prolife fundraising letters, that if “personhood” is “established” then “of course” the case for legal abortion “collapses”, since the 14th “Amendment” protects babies by not allowing any state to legalize abortion.
     I once “demurred” when it was time to plead “innocent” or “guilty” to the charge of “trespassing” at the door of a baby killer. Without disputing the facts, I saw no case, since it is not against American law to “trespass” in order to save lives.
     But Roe didn’t say the facts didn’t matter, but the opposite: the fact that babies of people are people, once “established”, is “of course” dispositive.
↑ More about “The fact that little unborn humans are humans is neither unknowable....”
See Statement of Facts #1: “Court-recognized, court-tested Finders of Facts unanimously establish that unborn babies are fully human, which makes killing them legally recognizable as murder, which the 14th Amendment doesn’t let any state legalize.”
↑ More about “The fact that little unborn humans are humans...is verifiable and dispositive.”
     “Scrupulously neutral” was Justice Kavanaugh’s idea, in his Dobbs concurrence, about how to keep an abortion ruling virtuous. But what virtuous person leaves the lives of millions to be decided by their value to voters?
     Dobbs, like Casey and Roe before it, didn’t answer that central question. But at least in Roe the hope was expressed that the termination of a baby would not extinguish the life of a human person:
“Indeed,...we [in a previous case] would not have indulged in statutory interpretation favorable to abortion in specified circumstances if [we knew] the necessary consequence was the termination of life entitled to Fourteenth Amendment protection. This conclusion, however, does not of itself fully answer the contentions [that babies are people] raised by Texas...” – Roe v. Wade at 159. (The acknowledgment that Texas’ “contentions” are not “fully answered” by the working assumption of a past case proves that this is not a positive statement that SCOTUS knows babies are not people.)

     The hope expressed in Roe and ignored in Dobbs “that the termination would not extinguish the life of a human person...is no longer factually tenable given the current state of scientific knowledge concerning the origin and development of the human fetus.” So stated the Illinois Right to Life amicus submitted in Dobbs v. Jackson. [See www.supremecourt.gov/DocketPDF/19/19-1392/148202/20200720191618686_19-1392%20BRIEF%20FOR%20AMICUS%20CURIAE%20ILLINOIS%20RIGHT%20TO%20LIFE%20IN%20SUPPORT%20OF%20PETITIONERS.pdf] “Roe also rests on a determination that the humanity and personhood of a human fetus was not generally recognized in law. That legal context has changed as well.”
     Dobbs not only agreed, but proved “that legal context” (that personhood was not generally recognized in law) had never even existed. Dobbs corrected Roe’s history, showing that protection of unborn babies was “well rooted in America’s legal history” (although concluding only that abortion was not).
     IRTL notes the growing consensus since Roe of legislatures, which Roe treated as court-recognized fact finders: “Among other changes in the law, fetuses are now protected as human beings under laws prohibiting fetal homicide. Other laws, such as ‘heartbeat’ laws and laws protecting against fetal pain, which are increasingly being enacted by the states, demonstrate their interest in protecting the youngest and most vulnerable humans. Finally, changes in the laws and the availability of social services that support and protect pregnant women have ameliorated the plight of pregnancy and lessened the burden of child-rearing. All of these changes rob Roe of its factual and legal underpinnings.”
     And rob Dobbs of any conceivable justification for its “scrupulous neutrality”.
↑ 5 More about “The consensus of court-recognized fact finders cures that knowledge deficit...requiring the outlawing of baby killing in every state.”
To select this one invidious [a favorite court word meaning unwanted, unloved, discriminated against] class of human beings – unborn babies – to be utterly unprotected from murderers is as prohibited by the 14th Amendment as designating any other class of human beings to be unprotected.
Examples from America’s past: blacks, Indians, Jews, Catholics. Today, Christians, Jews, Republicans, undocumented immigrants.

[1] 1 More about “a ‘mistake of fact’...is an official exception to Stare Decisis protection.”
Justice Brett Kavanaugh, during his confirmation hearing, described Roe v. Wade as “precedent upon precedent”, yet when asked by a Democrat about a precedent that Democrats don’t like, (Citizens United), he explained that a “mistake of facts” is one of Stare Decisis’ official grounds for overturning precedents. (Stare Decisis means “Let the decision stand”. Precedents should be followed except when their errors are clear.) Here is an excerpt:
Whitehouse: “The hypothetical problem that I have has to do with an appellate court which makes a finding of fact. Asserts a proposition of fact to be true. And upon that proposition hangs the decision that it reaches. The question is, what happens when that proposition of fact...turns out not to be true?” ...
Kavanaugh: “[This is] wrapped up in a question of precedent and Stare Decisis. And one of the things you could look at, one of the factors you could look at, how wrong was the decision, and if it is based on an erroneous factual premise, that is clearly one of the factors... Mistakes of history. Sometimes there are mistakes of history in decisions and mistakes of fact.” (Day 3 of the Brett Kavanaugh hearings. Beginning at from 4:52:11 to 4:53:50 of the video posted at www.youtube.com/ watch?v=mSyWoxGbpFg)
Connie Weiskopf and Kristine L. Brown, in the amicus brief they filed in Dobbs v. Jackson, said “As Justice Gorsuch wrote in his Ramos concurrence, ‘stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true.’ Ramos v. Louisiana, 590 U.S. __, __ (2020) (slip op. at 23).” [www.supremecourt .gov/DocketPDF/19/191392/185063/20210727174713396_FINAL_Brown_Weiskopf_Dobbs_Amicus.pdf]

[2] 2 More about “The [mistaken] premise... that the humanity of babies of humans is either unknowable or irrelevant...was explicit in Roe and Casey, and implicit in Dobbs”
These quotes are repeated from earlier footnotes to Finding #3: notes #1, 8, 10.
Dobbs v. Jackson explicitly ignored the central inquiry:
There is ample evidence that the passage of these laws was...spurred by a sincere belief that abortion kills a human being. Many judicial decisions from the late 19th and early 20th centuries made that point....One may disagree with this belief (and our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests), but even Roe and Casey did not question the good faith of abortion opponents. See, e.g., Casey, 505 U. S., at 850 (“Men and women of good conscience can disagree . . . about the profound moral and spiritual implications of terminating a pregnancy even in its earliest stage”). DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION 945 F. 3d 265
Planned Parenthood v. Casey said the central inquiry is beyond human knowledge:
“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.” Concurrence/Dissent by Scalia, Thomas, White. Planned Parenthood v. CASEY, 505 U.S. 833, 982 (1982)
Roe v. Wade said if doctors and preachers can’t resolve the central inquiry, mere judges certainly can’t figure it out:
“Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. 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, 410 U.S. 113, 159 (1973)
In other words, Roe passed on “the central inquiry”, as the Center for Religious Expression observes:
“The Roe Court demurred on the central inquiry. When the case was decided, the presence of a life inside a mother’s womb was a debatable topic, largely informed by religious and philosophical perspectives. [Roe passed] on “the difficult question of when life begins,” referencing differing belief systems). (Amicus brief filed in Dobbs v. Jackson by Center for Religious Expression. www.supremecourt.gov/ DocketPDF/19/19-1392/185542/20210802 162418144_19-1932%20Amicus%20Brief%20of%20Center%20for%20Religious%20Expression.pdf)
An interesting word, “demurred”, was used by the Center for Religious Expression. It means whether or not the facts alleged are true, there is no case. No legal grounds to justify a prosecution. (See the variety of descriptions of the word at www.legaldictionary.net/demurrer/, www.en.wikipedia.org/wiki/Demurrer, www.dictionary.law.com/Default.aspx?selected=487, www.britannica.com/topic/demurrer, and www.dictionary.law.com/Default.aspx?searched= demurrer&type=1.)
Roe said “We need not resolve the difficult question of when life begins.” As if that fact is irrelevant. As if whether or not it is true that babies of people are people, that is no legal reason to let states protect them.
But the complete quote, above, doesn’t say “we need not resolve the...question” because it doesn’t matter, but because the justices thought themselves incompetent to establish the fact. Doctors, philosophers, and theologians can’t agree, so how can mere lowly Supreme Court Justices know if babies of humans are humans?
“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
That interpretation is consistent with, and demanded by, the other notorious quote from Roe, found a few times in this book and common in prolife fundraising letters, that if “personhood” is “established” then “of course” the case for legal abortion “collapses”, since the 14th “Amendment” protects babies by not allowing any state to legalize abortion.
I once “demurred” when it was time to plead “innocent” or “guilty” to the charge of “trespassing” at the door of a baby killer. Without disputing the facts, I saw no case, since it is not against American law to “trespass” in order to save lives.
But Roe didn’t say the facts didn’t matter, but the opposite: the fact that babies of people are people, once “established”, is “of course” dispositive.

[3] More about “The fact that little unborn humans are humans is neither unknowable....”
See Statement of Facts #1: “Court-recognized, court-tested Finders of Facts unanimously establish that unborn babies are fully human, which makes killing them legally recognizable as murder, which the 14th Amendment doesn’t let any state legalize.”

[4] More about “The fact that little unborn humans are humans...is verifiable and dispositive.”
“Scrupulously neutral” was Justice Kavanaugh’s idea, in his Dobbs concurrence, about how to keep an abortion ruling virtuous. But what virtuous person leaves the lives of millions to be decided by their value to voters?
Dobbs, like Casey and Roe before it, didn’t answer that central question. But at least in Roe the hope was expressed that the termination of a baby would not extinguish the life of a human person:
“Indeed,...we [in a previous case] would not have indulged in statutory interpretation favorable to abortion in specified circumstances if [we knew] the necessary consequence was the termination of life entitled to Fourteenth Amendment protection. This conclusion, however, does not of itself fully answer the contentions [that babies are people] raised by Texas...” – Roe v. Wade at 159. (The acknowledgment that Texas’ “contentions” are not “fully answered” by the working assumption of a past case proves that this is not a positive statement that SCOTUS knows babies are not people.)

The hope expressed in Roe and ignored in Dobbs “that the termination would not extinguish the life of a human person...is no longer factually tenable given the current state of scientific knowledge concerning the origin and development of the human fetus.” So stated the Illinois Right to Life amicus submitted in Dobbs v. Jackson. [See www.supremecourt.gov/DocketPDF/19/19-1392/148202/20200720191618686_19-1392%20BRIEF%20FOR%20AMICUS%20CURIAE%20ILLINOIS%20RIGHT%20TO%20LIFE%20IN%20SUPPORT%20OF%20PETITIONERS.pdf] “Roe also rests on a determination that the humanity and personhood of a human fetus was not generally recognized in law. That legal context has changed as well.”
Dobbs not only agreed, but proved “that legal context” (that personhood was not generally recognized in law) had never even existed. Dobbs corrected Roe’s history, showing that protection of unborn babies was “well rooted in America’s legal history” (although concluding only that abortion was not).
IRTL notes the growing consensus since Roe of legislatures, which Roe treated as court-recognized fact finders: “Among other changes in the law, fetuses are now protected as human beings under laws prohibiting fetal homicide. Other laws, such as ‘heartbeat’ laws and laws protecting against fetal pain, which are increasingly being enacted by the states, demonstrate their interest in protecting the youngest and most vulnerable humans. Finally, changes in the laws and the availability of social services that support and protect pregnant women have ameliorated the plight of pregnancy and lessened the burden of child-rearing. All of these changes rob Roe of its factual and legal underpinnings.”
And rob Dobbs of any conceivable justification for its “scrupulous neutrality”.

[5] 5 More about “The consensus of court-recognized fact finders cures that knowledge deficit...requiring the outlawing of baby killing in every state.”
To select this one invidious [a favorite court word meaning unwanted, unloved, discriminated against] class of human beings – unborn babies – to be utterly unprotected from murderers is as prohibited by the 14th Amendment as designating any other class of human beings to be unprotected.
Examples from America’s past: blacks, Indians, Jews, Catholics. Today, Christians, Jews, Republicans, undocumented immigrants.

[1]

[2]

[3]

[4]

[5]

Statement 5 + Footnotes

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