Ending Legal Abortion in Every State in about a Year

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This forum was created by Dave Leach R-IA Bible Lover-musician-grandpa (talk) 02:31, 16 August 2019 (UTC) to help prolifers discuss the most effective evidence and legal arguments to include in legislation designed to force courts to address the overwhelming consensus of court-recognized fact finders that babies are people, which requires all states to outlaw abortion, according to the 14th Amendment, as Roe pointed, which Dobbs did not challenge. The original post of this article was condensed from "How States Can Outlaw Abortion in a Way that Survives Courts", by Dave Leach. Available as a paperback, Kindle, or as a free PDF.

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The "Outlawing Abortion in Compliance with Unanimous Court-Recognized Evidence that Abortion is Murder" Act

It is the fact that unborn babies are living human children that makes killing them murder. It’s not what any law says about it, or even what the Constitution says about it. That’s what leaves Dobbs v. Jackson on the edge of reality, by treating this fact as something for voters to figure out, not on the basis of whether babies are in fact people but on the basis of some “value” they place on little people.

That fact is what makes the consensus of court-recognized fact finders a stronger legal reason to end legal abortion than a Life Amendment, and a powerful social reason in the Court of Public Opinion. Which makes it insane for prolifers to not even mention this legally dispositive consensus in each and every prolife court case, and every “finding of fact” of prolife legislation!

Ending legal abortion everywhere in close to a year

(the goal of the following bill language)

requires a law whose Findings of Facts:

• contain evidence which no judge can squarely address and keep abortion legal anywhere: that unborn babies are real people – established by the (unanimous) consensus of court-recognized factfinders: juries, expert witnesses, 38 states, judges, and Congress;

• present its evidence in a way that is clear and persuasive to voters, to help them resist judicial and media gaslighting; (See below for “Why court-recognized fact finders persuade Voters”)

• address misunderstandings about abortion jurisprudence that divide prolifers, intimidate lawyers, and blind judges;

AND WHOSE PENALTIES

• restrict some aspect of abortion substantially enough that THEY can't be defended as a mere regulation with some other legitimate government purpose than saving lives. The restriction must be profound enough that its only possible defense is that it saves human lives. That will force courts to address the evidence that babies are fully human;

• provide no distractions that let judges rule on some technicality and ignore the evidence that the law would save lives. A perfect law that addresses everything from exceptions to contraception multiplies a judge’s opportunity to say “we don’t need to reach the issue of when life begins because the law fails on a lesser issue.” A simple yet substantial restriction, with “findings” that address the legal obstacles, will survive courts, which will get courts out of the way of saving life, which will free lawmakers to work out the challenging details with time to get a comprehensive solution right and with hope that they won’t waste their time;

• list specific penalties for specific situations, rather than broadly stated goals such as “babies are to be protected as much as adults”, leaving prosectors and judges to guess what to punish, or how, in situations where evidence and culpability are different; and

THE LAW SHOULD ALSO order courts to “expedite” any review, “because lives are lost with each day that courts delay”.

(A grant of expedited review will constitute tacit agreement that babies are people. To deny expedited review a judge would have to claim that lives are NOT lost with each day that courts delay; but there is simply no evidence to support such a claim! No American legal fact-finding authority in 50 years has dared such a claim! SCOTUS, from Roe to Dobbs, claims that even Supreme Court judges are incompetent to know - will a lower court judge claim superior knowledge?! Checkmate!)

More ideas: Judicial_Accountability_Act:_How_Legislatures_can_stop_judges_from_legislating

Findings of Facts Designed to Court-Proof Prolife Laws

Legislative Findings of Facts are the part of some laws which have no penalties, but instead contain principles, facts, or arguments to clarify the intent of the Penalties Section to help judges correctly apply it. This section of some bills may be called “Findings of Facts”, “Legislative Findings”, “Preamble”, etc. Sometimes, as here, it contains facts or legal arguments that refute objections to the law expected in courts, so judges won't overturn it.)

WORD COUNTS: Using only the first boldfaced paragraph of each of these 12 Findings, plus the headings after each "Finding #__", will total 347 words. The complete Findings, without footnotes, total 2944 words. For the advantages of including enough information for the Findings to defend themselves, see Too Lengthy? below.

Part 1: The Authority of Court-Recognized Fact Finders

Finding #1. Evidence of Life is Legally Established.

Abortion is legally recognizable as murder, which no state is allowed to legalize. According to the consensus of court-recognized, court-tested Finders of Facts, unborn babies are fully human, which makes killing them legally recognizable as murder, which the 14th Amendment doesn’t let any state legalize.

Although Roe v. Wade’s main holding is overruled, Roe stated a hypothetical with which no court has disagreed: “[Prolifers] argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment....If this suggestion of personhood is established, the [abortionist’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [14th]Amendment. The [abortionist] conceded as much on reargument.”

In other words, when we know preborn babies are in fact fully human children, then killing them is legally recognizable as murder, which the 14th Amendment doesn’t let any state legalize. That fact, independently of any law, ruling, or future constitutional amendment, dictates whether abortion is legally recognizable as a right or as a crime, irregardless of any fence-sitting, indifference, “value judgment”, or claimed inability to know.

No fact can be more legally established than the fact that “life begins” at fertilization, being the consensus of every American legal authority who has taken a position, in every category of court-recognized finders of facts: Juries, Expert witnesses, State legislatures, Individual judges, and Congress.

No legal authority has affirmed that any unborn baby of a human is not in fact a human person, or that “life begins” any later than fertilization.

No state can keep abortion legal now that this fact is established. This is so obvious that even Roe v. Wade said “of course”, and the lawyer for the abortionists agreed.

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The Authority of Court-Recognized Facts

Finding #2: The FACT that Babies are Fully Human was never denied or ruled irrelevant by SCOTUS.

From Roe through Dobbs, SCOTUS never ruled babies Non-Persons “as a Matter of Law”

SCOTUS has avoided taking a position on whether babies of humans are humans, but it was never true that SCOTUS made that FACT irrelevant, as lingering lower court precedent states.

In 1973, Roe said “the judiciary...is in no position to speculate” about “when life begins”. Roe was aware of the testimony of only one fact finder: Texas Attorney General Wade. (Although Dobbs later corrected Roe’s history with 50 examples of earlier state laws and court rulings. )

In 1982, conservative justices Scalia, White, and Thomas wrote “There is, of course, no way to determine [whether the unborn are human] as a legal matter; it is, in fact, a value judgment.” Casey, 1982. By then several juries and expert witnesses had spoken, but not, before then, state legislatures or Congress.

In 2022, Dobbs v. Jackson said “our decision is not based on any view about when a State should regard pre-natal life as having rights or legally cognizable interests”.

No longer does SCOTUS say it has no capacity to know if babies of people are people. But it declines to address the issue, leaving the consensus of fact finders unchallenged.

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#2 DISCUSSION Register (see Begin!) and join the discussion here. Vote, volunteer, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.

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Finding #3. Courts Accept Legislative Statements of Facts

SCOTUS must accept legislative findings of facts that are not obviously irrational. “..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).

Besides the court-recognized fact finding authority of legislatures, courts must conform their rulings to laws until such time as courts declare laws unconstitutional. No court has declared 18 U.S.C. § 1841(d) or the 38 similar state laws unconstitutional, despite many challenges.

To do so would require the Court to positively affirm that human life does not begin until much later, which no legal authority has done, and for which no evidence exists.

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Finding #4. Heartbeats & Brain Waves are Legally Recognized Evidence of Life

Detectable heartbeats and brain waves are evidence that a person has not yet died, throughout state and federal law. Reason demands they be accepted as evidence that a person has begun to live.

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Finding #5. Voters should regulate abortion, as Dobbs held, in the same sense that legislatures regulate the prosecution of all other murder laws.

But not in the sense of absolute discretion to leave wholesale murders of an 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 protection.

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

That is an erroneous factual premise. The fact that unborn babies of humans are humans is neither unknowable nor irrelevant. It is verifiable and dispositive. The consensus of court-recognized fact finders cures that knowledge deficit, canceling that Dobbs holding interpretation, 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.

To select this one invidious [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; for example, in America’s past: blacks, Indians, Jews, Catholics. Today, Christians, Republicans, undocumented immigrants.

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Finding #6: The full humanity of a tiny body is hard for some to grasp. But what distinguishes us from animals isn’t physical, and has no known pre-conscious stage.

Part of Roe’s definition of “person” was “infused with a soul”. Roe thus affirmed the belief of most of society, a belief logically demanded by the common knowledge that humans are distinguished from animals by consciousness which features a capacity for choices at variance with physical needs: to love, as defined by John 15:13, to sacrifice one's interests for another. And conversely, to destroy one’s own body.

This, along with self awareness and the capacity to choose between good and evil – to behave either as an angel or as a demon, can’t be explained by any known physical process. These differences justify legal protection of humans beyond protections of animals.

Since “infused with a soul” is a common definition of “person” besides being Roe’s definition, and a “soul” without consciousness has never been theorized and can’t be imagined, the consensus of fact finders is, in effect, that abortion kills babies with conscious souls.

Souls have no known pre-conscious stage. The lack of any physical explanation for a conscious soul rules out any reason to infer immaturity of consciousness from physical immaturity, and is consistent with the report in Luke 1:44 that a baby at 6 months heard a righteous voice [and/or felt the righteous Presence of God] and responded with joy, a response not everybody chooses, indicating that the capacity for choosing between good and evil precedes birth.

Even considering the body only, there is no objective line between birth and conception distinguishing “humans” from “nonpersons”.

Without such a line, there can be no stage of gestation at which killing a baby can be objectively distinguished from murder. No baby is safe while that line remains arbitrary.

The failure of some to grasp the humanity of babies at any given stage is a dangerous basis for permitting killing, since as many fail to grasp the full humanity of quite a number of distinct groups of born persons.

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Myth Busters

Finding #7. Congress Already Enacted a Personhood Law - as Strong as a Constitutional Amendment - 19 years ago!

Congress established in 2004 that: “‘unborn child’ 
means a child in utero, and the term ‘child in utero’...means 
a member of the species Homo Sapiens, at any stage of development, 
who is carried in the womb”, 18 U.S.C. 1841(d). This fact, with 
the 14th Amendment, requires all states to outlaw abortion. 
	
This fact is not diminished by clause (c) which does not “permit 
[authorize] the prosecution of any person for...an abortion for 
which the consent of the pregnant woman...has been obtained.…” 
A law imperfectly aligned with facts does not block future lawmakers 
from correcting deficiencies, and states don’t need Congress’ 
“permission” to obey the 14th Amendment. [Each state could add 
a similar point about its own “unborn victims of violence” law.]

Finding #7 responds to the official position of prolifers and Republican Congressmen that 1841(c) robs clause (d) of any power to undermine Roe. “By its express terms, the Unborn Victims of Violence Act does not apply to, nor in any way affect nor alter, the ability of a woman to have an abortion.” - House Judiciary Committee report, 2/11/2004

“The law explicitly provides that it does not apply to any abortion to which a woman has consented, to any act of the mother herself (legal or illegal) ...It is well established that unborn victims laws (also known as ‘fetal homicide’ laws) do not conflict with the Supreme Court’s pro-abortion decrees (Roe v. Wade, etc.). The state laws mentioned above have had no effect on the practice of legal abortion.” - Key Facts on the Unborn Victims of Violence Act 4/1/2004 nrlc.org.

They have had no effect on the practice of legal abortion, because no state has cited them to say what Roe said once said would end the practice of legal abortion.

Not only is the 2004 law unmitigated evidence of life strong enough to “collapse” legal abortion by itself, but it would not be stronger if it were an Amendment to the Constitution. No other Constitutional Amendment is relied on for evidence of a fact. An Amendment will bind courts. Establishment of the Facts Of Life by evidence presented, cited, and tested in court will make society at peace with an abortion ban.

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Finding #8. Roe and Dobbs agree: All Humans are “Persons”

Neither Dobbs nor Roe distinguished
between "humans" and "persons" as if a "human" baby 
isn't necessarily a "person". Dobbs cites the belief
that "a human person comes into being at conception"
without distinguishing between the words. 

Roe v. Wade equated the time an unborn child 
becomes “recognizably human” with the time the child becomes 
a “person”: “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.’” 410 U.S. 113, 133(1973)
See also Wong Wing v. United States, 163 U.S.228, 242 (1896), “The term 
‘person’ is broad enough to include any and every human being within the 
jurisdiction of the republic...This has been decided so often that the 
point does not require argument.” Steinberg v. Brown 321 F. Supp. 741 
(N.D. Ohio, 1970) “[o]nce human life has commenced, the constitutional 
protections found in the Fifth and Fourteenth Amendments impose upon 
the state a duty of safeguarding it”.
	
The word “persons” in the 14th Amendment means all who are IN FACT humans. 
Had it been only for those who are ''legally recognized'' as human, every 
deprivation of fundamental rights would be “constitutional” so long as a 
law or ruling questions whether its victims are “persons in the whole sense” 

Unfortunately many prolifers have thought Roe created a distinction which Roe did not, which for 49 years sent many prolifers off chasing rabbit trails. The myth that proof that babies are humans falls short of proving they are “persons” made prolifers fail to appreciate how overwhelming the consensus is of court-recognized finders of facts, that all unborn babies “at all stages of gestation” have 14th Amendment protection.

The false impression that that isn’t enough evidence yet to topple legal abortion kept many prolifers from supporting legislation that would have challenged legal abortion with the overwhelming evidence we already had, until we could pass more “personhood laws” and add “babies are persons” to the U.S. Constitution.

The assumption that Roe ruled that not all humans count as “persons” protected by the 14th Amendment led prolifers to think the consensus of fact finders that babies are humans didn’t count as evidence that would trigger Roe’s “collapse” clause.

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

Perhaps this misunderstanding is no longer needed now that Dobbs has "repealed" Roe, which has supposedly separated "persons" and "humans". If this misunderstanding no longer intimidates prolife strategy, then this clarification isn't needed.

However, I have not seen this myth decisively put to rest, so leavng this unclarified will probably tempt judges to gaslight voters.

“Indeed,...we would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection.” – Roe v. Wade at 159.

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Finding #9. SCOTUS never said Personhood Laws are Impotent

SCOTUS never denied that state personhood laws are 
strong evidence in an abortion case. SCOTUS only said 
a personhood law by itself, without penalties, can’t 
generate a case. 

Webster v. Reproductive Health Services 492 U.S. 490 (1989) 
did not say Missouri's personhood law had no power to topple Roe, 
but only “...until... courts have applied the [personhood] 
preamble to restrict appellees’ [abortionists] activities 
in some concrete way, it is inappropriate for federal courts 
to address its meaning.” - Webster, p. 491. (First paragraph)

Similarly, Dobbs v. Jackson reviewed a state law with clear 
“personhood” declarations, but not applied to any challenge 
to murdering those persons. The law itself did not challenge 
the constitutionality of killing babies before 20 weeks, and 
in oral arguments, Missouri’s AG explicitly denied he was 
asking SCOTUS to outlaw abortion. The issue of whether babies 
are people who should never be murdered was not before the court. 

Webster explained the principle: “It will be time enough for 
federal courts to address the meaning of the [Personhood law] 
should it be applied to restrict the activites of [the abortionists] 
in some concrete way.” Id at 506.

Far from treating a single state personhood law as impotent, 
SCOTUS said that were it coupled with a clear penalty, that 
“will be time enough to reexamine Roe, and to do so carefully”. 
Concurrence by O'Conner, Id. at 526. How much more the 
uncontradicted findings of 38 states is enough support for 
any abortion restriction.

Background: Missouri's otherwise strong personhood law had no penalties restricting abortion. It even promised to obey SCOTUS. But SCOTUS reviewed the case only to tell the world that the case was not “ripe” for review! States can talk all they want; SCOTUS only cares what states do. Nor has any other SCOTUS ruling made any attempt to decide unborn personhood, or consider what triers of facts say about it, or even treat it as a a topic of interest.

Webster left the impression that when SCOTUS finally decides if one state’s affirmation of Life is enough, abortion’s legality could go either way. Now 38 states concur with Missouri.

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Finding #10. “Exceptions” do NOT Mitigate or Undermine Personhood Assertions

Evidence of Life is not disproved by an 
“exception...for the purpose of saving the life of 
the mother” and/or by not charging the mother with being 
a “principal or an accomplice” to murder, as Roe’s 
footnote 54 is generally interpreted. 

N. 54 was part of a 65 page search for some explicit statement 
by fact finders; Roe alleged that there were none. Had Roe found 
explicit statements, that would have satisfied SCOTUS, 
so far as we can determine from reading Roe.

Although the ideal of law is equal protection of all humans, 
human law is as imperfect as humans. The very political, legal, 
and Biblical necessity of “innocent until proved guilty” 
illustrates the inability of human courts to equally protect 
every human, without that inability proving that crime victims 
are not fully human! 

A legal reason for stiffer penalties for abortionists than for moms 
is (1) to get moms to testify against abortionists, and (2) 
the greater ease for juries of imputing culpability to adult doctors 
than to mothers suffering varying degrees of youth, deception 
(by culture, schools, pastors, and judges) and pressure 
(by family and fathers). A legal reason for a “life of the mother” 
exception is that while we are inspired by people who give their lives 
for others, we can’t require them to by law. Even our Good Samaritan laws, 
requiring people at accident scenes to help, are sparse and inconsistent.

It would be hypocritical to charge aborting moms with being accessories 
to murder, without first charging judges. 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. Such a legal theory is absurd, unknown 
outside Footnote 54, and cannot be taken seriously.

Background: Although Roe is officially “overruled” by Dobbs v. Jackson, not every lie in it has been dislodged from prolife legal thinking, and there are still prolife lawmakers who are afraid to support any bill that fails to save every baby, believing that will be taken by baby killers as evidence that prolifers don’t really believe babies are fully human. This Finding is for them.

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#10 DISCUSSION Register (see Begin!) and join the discussion here. Vote, volunteer, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.

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Part 4: Conclusions

Finding #11. “Abortion is Legal” no Longer

Court-recognized finders of facts 
have never treated abortion as legal in the whole sense.

Their consensus that unborn babies are fully human “persons” 
makes abortion legally recognizable as killing innocent 
human beings, which is legally recognizable as murder, 
which is neither constitutionally protected nor legal, 
but rather is what even Roe said would require abortion’s 
legality to end. No judge can squarely address this evidence 
and keep abortion legal because to the extent judges protect 
what everyone now knows are the worst crimes, they eliminate 
the reason for judges. 

Background: The goal of this defense is a challenge to legal abortion that is irresistible to judges in courts of law as well as in the Court of Public Opinion. How could anyone, confronted with this evidence, still demand legal abortion?

The standard defense of legal abortion is “But abortion is legal”. This argument is trusted to trump the opinions of legislatures, doctors, biologists, and the Bible. This defense will evaporate as this evidence survives the scrutiny it will receive as it progresses through any legislature, and as courts are forced by the evidence to agree that babies are living, fully human beings whose lives must be protected by law.

Even before courts agree, public confidence that “abortion is legal” will further erode as the public realizes that even before prolifers get this evidence before courts, abortion is already legally recognizable as murder, with which courts will most certainly agree if they squarely address the evidence.

Most Americans, Democrats or Republicans, would never deliberately support murder. Not even Roe v. Wade:

“...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.”

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Finding #12. The Constitution Requires States to Outlaw Abortion

There now remains no court-recognizable basis 
for doubt that abortion kills innocent, human beings, 
which is not a fundamental right. 

Therefore this state must, as must every state, 
enact the greatest restrictions available to law 
of murdering unborn babies, without waiting for judges 
to grasp their humanity. In view of the uncontradicted 
consensus of court-recognized fact finders, this State’s 
legal liability from noncompliance with the 14th Amendment, 
by failing to thoroughly outlaw abortion, is greater than 
any legal liability from taking corrective constitutional 
action in advance of indecisive courts.

Background: Deadly Assumption: that the most courts can do about abortion is to let states individually decide whether to protect baby killers. That principal holding of Dobbs - “the authority to regulate abortion is returned to the people and their elected representatives” - was the view even of conservative justices Scalia, White, and Thomas in Casey, 1982: “There is, of course, no way to determine [whether the unborn are human] as a legal matter; it is, in fact, a value judgment.”

History: That was 40 years ago, that they hadn’t noticed the growing evidence of court-recognized fact finders: dozens of jury acquittals and thousands of uncontradicted expert witnesses in genetics and medicine, in abortion prevention trials. Now 38 states and Congress have unborn victims of violence laws; still, they don’t notice.

The Question: Are unborn babies people, or tumors? This is a question about reality, not opinions, laws, or “value judgments”. If unborn babies are in fact as human as any judge, “infused with a soul” as Roe put it, able to sense good and evil, like the famous unborn baby in Luke 1:39-44, then “of course”, as Roe put it, abortion must end.

In every state, Roe meant, a statement of the obvious which SCOTUS has never negated.

Were unborn babies tumors threatening their human hosts, then “of course” abortion must remain legal in every state. “Potential life” is how Dobbs quoted Roe as an acceptable way to describe babies. But factfinders agree babies are humans. Not just potential humans.

The spread to every state of the outlawing of abortion would occur as judges face the overwhelming consensus of court-recognized fact finders that babies are, in fact, humans/persons. This would void the rationale for legal abortion, that “the judiciary...is in no position to speculate” about whether babies are humans. After it is established/acknowledged by judges that babies are fully human, with rights to life protected by the 14th Amendment, how could they then allow any state to continue the slaughter? The only possible way to keep baby murder legal would be to repeal the 14th Amendment, returning to states the power of majorities to tyrannize minorities. Of course, that would make slavery legal again.

The Fallout of the Assumption. Because of SCOTUS’ myth that the end of Roe returned to each state the choice between saving and murdering, There have been states like Alabama, May 15, 2019, that cited medical authorities only within its own boders. Its goal of letting Alabama decide what is allowed within its own borders was articulated in an amicus brief by an organization associated with Judge Roy Moore. (See http://savetheworld.saltshaker.us/wiki/Abortion_Law_Alabama)

The additional lost opportunity is that while some prolife law findings cite medical authorities in support of their “personhood” claims, none that I have seen cite the court-tested authorities found in thousands of trial records. Or the “personhood” claims of the other 37 states and of Congress. If there are 39 witnesses to a murder, should a prosecutor bring forward only two? But legislatures have supported abortion bans with only their own say-so. No 37 other states. No Congress. No thousands of uncontradicted expert witnesses. No dozens of juries. Only a trace of the overwhelming evidence for the claim that constitutionally protected “life begins” at fertilization.

For as long as prolifers do not justify their restrictions of abortion with the full range of evidence available from all states, it seems unlikely, indeed not fully rational, that the Supreme Court will end the right of women to take care of their own health for the sake of embryonic pigs and rabbits – which is how human embryos were depicted in the illustration cited by Roe, published in Dorland’s Illustrated Medical Dictionary. (See Appendix J, p. 166, in “How States can Outlaw Abortion in a Way that Survives Courts”, from which this booklet is excerpted.)

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#12 DISCUSSION Register (see Begin!) and join the discussion here. Vote, volunteer, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.

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Finding #13. Judicial Interference with Constitutional Obligations is Impeachable

Any judge or court which attempts to block 
this state's effort to bring its laws into conformity with 
the 14th Amendment violates Roe v. Wade and Dobbs v. Jackson, 
interferes with this state’s compliance with the Constitution, 
and is an accessory to genocide according to the uncontradicted 
consensus of court-recognized fact finders.
 
Any state judge interfering with this state’s obligation to obey 
the 14th Amendment obligation to protect its unborn citizens 
from abortion is guilty of exercising the legislative function, 
in order to perpetuate genocide through an unconstitutional ruling, 
which exceeds the judicial powers given by the state Constitution, 
which is Malfeasance in Office, a ground of impeachment. 

Should any federal judge so interfere, this state appeals to its 
congressional delegation to examine similar grounds for disciplinary action.  

(For example, see  “Bringing the Courts Back Under the Constitution” 
at http://osaka.law.miami.edu/ ~schnably/ GringrichContractWithAmerica.pdf‎.) 

Background: Legislatures have considerable untapped potential for restraining their activist courts when they become confused about which branch of government they are.

Page XXXIII of “How States can Outlaw Abortion in a Way that Survives Courts” offers suggestions. Briefly, any legislature is well within its constitutional authority to prohibit any district court from invalidating a law – only a supermajority of the Supreme Court should be allowed to do it, and only within 90 days. After they do, the legislature should be able, within the next year, to compel the attendance of judges under their jurisdiction to discuss and debate, with specified legislators in a public hearing, the constitutional justification for [or necessity of] that judicial exercise of the legislative function. A supermajority of the legislature might then overturn the ruling, and the final verdict will be made by very well informed voters at the next election.

See Judicial Accountability Act

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More Stuff

Why court-recognized fact finders Persuade Voters

Juries.

The reason juries can “establish” these truths with the kind of authority that is acceptable to whole societies is that unlike public opinion surveys or petitions, which are normally not admissible evidence of facts in court, we test jurors for impartiality and educate them with the most qualified expert witnesses we can find. And the education of jurors does not end with a 500 word article. It continues until both sides run out of evidence. Which can take all day, all week, or even all year. Juries contribute impartiality, and commitment to study as long as necessary, to our search for Truth.

Unfortunately when states defend their abortion restrictions in court, they have not, so far, cited the consensus of juries in those few early abortion prevention trials in which judges allowed juries to hear the Necessity Defense (the defendants’ action was necessary in order to save lives ) and juries acquitted because the defendants were saving lives. This is a powerful resource which prolifers need to use. In both kinds of courts - of Law, and of Public Opinion.

Expert witnesses.

The reason expert witnesses testifying in court records are more persuasive to whole societies than experts outside court is that in court, (1) the very top experts that the litigants can afford are called, and (2) those experts are scrutinized by the top experts called by the opposing side. That is a standard that news reporters make a show of meeting, but reporters will (1) talk to a source for an hour and select maybe two sentences for a quote, (2) take the quote as far out of context as necessary to suit the prejudices of the reporter, (3) get the quote wrong, (4) make no public record available of all that was said so readers can double check the accuracy of the report, and (5) cram all that into 300-1,000 words.

Judges at least write a summary of the proceedings, reporting the positions of both sides, in more detail than news reports. Roe was 65 pages. And anyone can get a transcript of the proceedings, and copies of the legal briefs filed, if they are rich enough. At least records exist.

The value of expert witnesses in abortion prevention trials, who testified that fully human life begins from the first minute, is that they were never, or at least virtually never refuted. Which is breathtaking considering that Planned Barrenhood invests billions in legally attacking prolifers, demonstrating their extremely high motivation to refute prolifers in court to the extent possible! Yet the closest they came to refuting the expert witnesses against them was to say that babies of humans may be fully human, making killing them legally recognizable as murder, but Roe made that “irrelevant”.

In normal trials, if a litigant argues that the opposing evidence is irrelevant, he will also bring in contrary evidence to show the opposing evidence is also wrong, in case the judge doesn’t agree that it is irrelevant. But in abortion trials, that apparently never happened. No witness, in thousands of trials, was ever brought forward to testify that protectable “life begins” any later than fertilization. The fact was dismissed as irrelevant, but the accuracy of the fact was for all practical purposes conceded, being left unchallenged.

Unfortunately prolife legislatures have not cited this overwhelming evidence in court. Some litigants cite the expertise of new authorities that have not yet been tested in court, but not the tested evidence. This is a powerful resource that prolifers should use. In both kinds of courts.

Legislatures

Societies respect the findings of their legislatures as much as any other authority because all the lawmakers are there with the support of a majority of voters, and to remain there, they suffer the bombardment of opinions and information that would make the average citizen cry. And even once there, they are scrutinized by other lawmakers who continually look for ways to disprove them.

Lawmakers are elected from the same populations that supply jurors, and expert witnesses are routinely clamoring to give them information for free. Lawmakers pay the salaries of judges, and have the power – seldom exercised, but they have it – to impeach judges who stray too far out of their jurisdiction into the powers assigned to legislatures. When they impeach judges, they then hold trials just like courts do; except that the senators are judges and the judges are defendants.

So when legislatures agree on facts, their verdict is as persuasive and acceptable to society as any human authority.

It is therefore for good reason that these fact-finding authorities are recognized by courts and are persuasive in the Court of Public Opinion, even though not many think about these details. Still, these points should be made.

In both kinds of courts.

Congress.

Congress approves Supreme Court justices. Not only does the Constitution give Congress that power, but Congress is well qualified: it contains many lawyers, many of whom qualify as constitutional scholars. At least that is what presidents have often thought, since 15 U.S. Senators served on the U.S. Supreme Court, not counting those nominated but not approved by the Senate.

So when Congress ruled that all unborn babies are fully human from fertilization (“members of the species homo sapiens at all stages of gestation”) its ruling on that fact carries at least as much weight as what the Supreme Court has ruled. Especially since the Supreme Court has never ruled on when babies in fact become human.

Roe said it is when babies are “recognizably human” and/or “infused with a soul”. (“These disciplines variously approached the question [of when life begins] 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’... Roe v. Wade 410 U.S. 113, 133 (1973) Although this statement reports how other “disciplines” framed “the question”, this criteria is reported without criticism, implying concurrence; especially since Roe offered no other criteria and even said “the judiciary, at this point in the development of man’s knowledge, is unable to speculate” in the absence of the consensus of expert witnesses: “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus”.)

Conflicting Prolife Goals

Two conflicting goals have divided prolife lawmakers for half a century: (1) the goal of getting abortion outlawed comprehensively, (ie. not just surgical but chemical abortions, no exceptions for rape or incest, etc.) and (2) the goal of getting the law passed and safely through courts.

It has seldom been thought possible to achieve both goals. The strategy here has a third goal designed to make goals #1 and #2 easy, but whose initial draft will seem to violate #1 because it leaves whole areas of baby killing unaddressed, and to violate #2 because it outlaws way more than many prolife lawyers will think possible.

This third goal is to get judges out of the way of saving lives in about a year, so legislatures will have the green light to deliberate on all the details as comprehensively as their voters will accept, and not only that, but to educate voters so voters will not just accept but demand much more.

In other words the purpose of this bill is NOT to comprehensively define, now, what rights to live babies ought to have, but to push away judicial and political obstacles to legislators defining, in as soon as a year, what rights to live babies ought to have. It is like an earth mover which must first come along and reconfigure a hill so that a cement truck can come later and lay down a road. The two functions must not be confused. The earth mover must not be barred from the work area because it will not lay down a road.

Obstacles to Saving Lives

Obstacle #1: America's Smartest Judges Can't Tell if Babies of People are People.

Hard to believe, but read it and weep: Analysis_from_Dobbs_v._Jackson Troubling_Excerpts_&_ Analysis_from_Dobbs_v._Jackson

Obstacle #2: Lingering Lower Court Precedent that Roe made Babies nonPersons “as a matter of Law”

Lower appellate courts in abortion prevention cases used to say that evidence that babies are in fact fully human is irrelevant – therefore inadmissible, because Roe made babies nonpersons “as a matter of law”. Roe never said such a thing, and it is absurd to imagine that a state can make murder legal simply by saying in the law that the human beings to be murdered aren’t people “as a matter of law”. But that's what courts said.

Indeed, Dobbs said “We hold that Roe and Casey must be overruled.” But lower courts weren’t held back from making up a holding not found in any SCOTUS ruling in 1973, so they are capable of the same stunt in 2023. Especially since Dobbs is as noncommittal on the humanity of babies as was Roe.

Obstacle #3: ... America let them get away with it.

Prolife legislation that made it to SCOTUS (and most of the rest) never challenged the myth that Roe made babies “nonPersons”. They didn’t make the humanity of babies an issue that courts needed to address.

(Webster, 1979, said babies are people but also said Missouri would obey Roe, so SCOTUS said when Missouri actually restricts abortion is when SCOtUS will think about babies being people. Dobbs, 2022, said babies are people but Attorney General Stewart called it “hot” and “difficult” whether to keep protecting their murders! An issue upon which the AG said SCOTUS should remain “scrupulously neutral”! [See my analysis of December 1, 2021 oral arguments at Outlaw Baby Killing in EVERY State

Instead of pointing out that babies of humans are humans which makes dismembering them murder which no state can be allowed to legalize, states bowed to Casey, 1992, which said no abortion restriction can be “substantial” - nor can any part of its purpose be to reduce abortions.

Although over 60,000 were arrested for blocking baby killing doors and their defense in court was that they were saving lives, those “lawbreakers” didn't even have majority prolife support much less full Republican support, making their defense easy to gaslight.

To this day no state in its prolife laws or courtroom defense has pointed out that the FACT that unborn babies are fully human is dispositive, and is “established” by 38 states in their “unborn victims of violence” laws, dozens of juries in abortion prevention cases when judges allowed them to hear the Necessity Defense, tens of thousands of expert witnesses in those trials who were never countered, Congress in 18 U.S.C. 1841(d), and by every judge who has taken a position. No American court-recognized fact finder that has taken a position on "when life begins" has fixed any later time than fertilization." If the consensus of every American court-recognized fact finder is not enough to establish a fact enough for a judge to know it, it is impossible for any judge to ever know anything.

It is impossible for any judge to squarely address this evidence and keep abortion legal.

But no state has presented this evidence in any court.

Judges think it is unethical to rule according to evidence submitted by neither party to a case. No state has made these points in court. Making them in the law’s “findings” will force the ruling to quote them, which will force judges to address them.

For example, after quoting #2 of the law proposed here, which calls unanimous lower appellant precedent “the opposite of what Roe or any other SCOTUS precedent said”, courts couldn’t just ignore that claim. They would have to deal with it.

Public education is needed to help pressure judges to squarely address the findings. The Judicial Accountability Act will make the pressure overwhelming. [http://savetheworld.saltshaker.us/wiki/ Judicial_Accountability_Act:_How_Legislatures_can_stop_judges_from_legislating How Legislatures can Stop Judges from Legislating]

CAVEAT: Obviously, women do have a “fundamental right” to manage their own health, including removing foreign objects from their bodies which are not people. This strategy in no way targets cancer operations.

Willful Blindness to Personhood Before and After Dobbs

Of the goals stated on page 2, the following is just as important now, after Dobbs v. Jackson, as it was before, but for different reasons:

• The restriction must be substantial enough to rule out every lesser courtroom defense, than that it saves lives.

Before Dobbs, any state that wanted to focus judges’ attention to the evidence that babies are humans/people would have needed to enact a restriction of abortion that was substantial. That is because Casey, 1992, had said no state law can “substantially” restrict abortion, OR have for its purpose ANY reduction of abortion. That intimidated prolife states into crafting prolife laws which did NOT substantially reduce abortion, and which were equipped with some other “legitimate government purpose” than saving lives.

For example, keeping the murder rooms clean, keeping an accurate count of the number of murders, or informing moms that they were about to become murderers. Those “legitimate government purposes” became SCOTUS-approved.

In fact, presenting evidence of life was a no-no for any state trying to satisfy Casey, since that would admit that part of the state’s purpose was to reduce abortion.

An example of how far states went to accommodate Casey was Iowa’s heartbeat bill. Prolifers were told it would eliminate almost all abortions since the age where a heartbeat is detectable is almost the age where a mom knows she has a baby. But in court, obviously trying to dodge Casey, attorney Martin Cannon actually told the judge the law would not stop one single abortion; it would merely pressure mothers to hurry up and find out whether they are pregnant so they can murder their babies before we are sure they are “persons”! (See SLIC/IowaHeartbeatArguments.pdf Iowa Heartbeat Arguments)

Post-Dobbs, it is just as important that the penalties of a prolife law are a serious, profound restriction of abortion, but for a very different reason. No longer are states ordered to keep restrictions negligible, but Casey’s reason for keeping restrictions negligible has not been corrected. In fact, Dobbs explicitly stated the issue, and then explicitly declined to address it:

There is ample evidence that the passage of these laws was instead 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

Notice, however, that Dobbs does not say either that (1) it is impossible or impermissible for “abortion kills a human being” to graduate from a “sincere belief” to a “fact”; or that (2) even if that fact is established, that won’t make abortion legally recognizable as murder; or that (3) even after abortion is legally recognizable as murder, voters should still get to decide whether to keep it legal. For further analysis of Dobbs see my review at Troubling_Excerpts_&_Analysis_from_Dobbs_v._Jackson

This is the same judicial willful blindness to the only issue that really matters that was adopted by even the conservative justices in Casey, 1992, modeled before it by Roe v Wade, 1973. Here is Scalia, White, and Thomas’ dissent in Casey, followed by a statement from Roe:

The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its “balancing” [between women’s “privacy” and “potential life”] is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human.

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)

Roe: “the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer...[to] the difficult question of when [constitutionally protectable human] life begins.” So therefore “We need not resolve” the question!...

“[Prolifers] argue 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, the [abortionist’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [14th]Amendment. The [abortionist] conceded as much on reargument.

“...we would not have indulged in statutory interpretation favorable to abortion...if [we had known that] the necessary consequence was the termination of life entitled to Fourteenth Amendment protection.”

What fact can be more central to an abortion case, than that babies are people, which makes killing them murder? Yet for 50 years and still counting, even SCOTUS’ most conservative justices seem determined, if not personally, ethically, religiously invested, in ignoring that “elephant in the room”. They are not alone: the same willful blindness reigns in the Court of Public Opinion. And even in many churches.

Therefore this obstacle to saving lives needs to be taken seriously. Satan has set up headquarters there. Every effort must be taken by legislatures to make “it’s a baby” the central, inescapable issue in court, and Findings of Facts must not only prove clear and irrefutable to judges but just as clear and irrefutable in the Court of Public Opinion.

An Example of a Substantial yet Simple Restriction

The restriction must be substantial enough to rule out every lesser courtroom defense, than that it saves lives, yet it must be simple enough to be free of any distraction from ruling on the evidence that babies are people, such as a “lesser issue” over which the judge can dispose of the case and say “we therefore have no need to address when life begins”.

This is an example of a profoundly substantial restriction of abortion yet which is so simple that it adds only five words and deletes 10. This leaves NO room for some judge to dodge the central issue on some technicality.

“Bills” in legislatures are proposed changes to laws. Underlines indicate proposed additions. Strikeouts indicate proposed deletions.

Iowa Code 707.7 Feticide.

1. Any person who intentionally terminates a human pregnancy at any state of gestation, with the knowledge and voluntary consent of the pregnant person, after the end of the second trimester of the pregnancy where death of the fetus results, commits feticide. Feticide is a class “C” felony. [The next three paragraphs would be altered similarly.]

Expedited Review in federal law

Every prolife bill ought to include: Any court review of this law must be expedited, since lives are lost with each day that courts delay.

The power of this addition is explained on page 3, top. This article is about the use of expedited review in law generally.

Legislatures sometimes require courts, in time-sensitive cases, to rule quickly. Usually expedited review is an option for judges, when a party to a case requests it. When a court reviews the constitutionality of a state law, the state is a party to the case.

Examples: Expedited Review Grounds

DC Circuit Federal Court: A party seeking expedited consideration generally "must demonstrate the delay will cause irreparable injury and that the decision under review is subject to substantial challenge"; but "[t]he Court may also expedite cases . . . in which the public generally [has] an unusual interest in prompt disposition" and the reasons are "strongly compelling." - U.S. Court of Appeals for the DC Circuit, Handbook of Practice and Internal Procedures 40 (1987).

9th Circuit: The requesting party must make a showing of “good cause,” where irreparable harm might occur or an appeal might become moot. Rutter 6:149.

10th Circuit: Appeals can be expedited under 28 U.S.C. 1657 for "good cause."

Iowa: Iowa Rule of Appellate Procedure 6.902 has special rules for children's issues (since children might not remain children through a years-long case) and lawyer disciplinary proceedings. (Babies are children.)

3rd Circuit: Rule 4.1 says a motion for expedited appeal must set forth the exceptional reason that warrants expedition and include a proposed briefing schedule.

4th Circuit: Rule 12(c) says “A motion to expedite should state clearly the reasons supporting expedition....”

7th Circuit: Appeals can be expedited under 28 U.S.C. § 1657 for “good cause.” (Reasons must be given.)

Expedited Appeal Law and Legal Definition (An explanation at uslegal..com): “The court will speed up cases involving issues of child custody, support, visitation, adoption, paternity, determination that a child is in need of services, termination of parental rights, and all other appeals entitled to priority by the appellate rules or statute.” Other grounds: “the constitutionality of any law, the public revenue, and public health, or otherwise of general public concern or for other good cause,” (Source: rcfp.org lists expedited review rules for each federal circuit court and for each state's courts.)

Too Lengthy?

Unlike the “penalties” section which must remain simple and short enough that no judge can find a technicality to rule on in order to ignore the central issue, the “Findings” section must be thorough enough to refute objections to the law expected in court, which have also prevented prolifers from challenging legal abortion as the legally recognizable murder of human beings, and which have confused the public.

In other words the same arguments which need to be in the law so judges can’t overturn it, need to be in the bill so lawmakers will pass it, the public will support it, and abortion supporters will retreat. The more information in the law, the less lawmakers will have to memorize to defend it, the harder for news reporters to portray it as indefensible, the easier for voters to find corroboration, and the more certainly lawyers defending the law will make the arguments you want. Baby Killers will help publicize them at every stage of their progress through legislative deadlines, because like June Bugs in summer, they are unable to see a Light without slamming themselves against it.

Some of these Findings will seem idiotic to some people for opposite reasons. Prolife leaders and lawyers will find statements so far opposite to the conventional legal wisdom of decades as to seem legally naive. Those who have never heard the legal assumptions to which these paragraphs respond may think them so obvious as to be stupid to even say.

Two goals are at perpetual war with one another in any writing targeting evil: brevity, and “making the case”, which includes addressing all objections. Satan has the advantage with people who “don’t like to read” because it takes fewer words to lie than to refute a lie.