A Law Designed to Force Courts to Address Evidence of Life
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, according to Roe, requires all states to outlaw abortion. 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 Enforcement Section
Part One is the enforcement section of the legislation: the part with penalties for those who violate it. For reasons explained in Part Two, the Legislative Findings, a law designed to knock the foundation out from under legal abortion must restrict abortion substantially and deliberately. It must be simple, in order to avoid creating any distraction from this evidence, or excuse for judges to dodge the issue. That is far more critical than making this law the final version that will address everything from exceptions to contraception and serve Life for 1,000 years. The mission of this law is a case that will force judges out of the way of saving Life. After that is done, lawmakers will have leisure to discuss and research challenging details. Therefore this enforcement section must be very simple. The wording of this section will vary from state to state, depending on where in each state's laws the simplest change can most substantially restrict abortion.
Iowa Code 707.7 Feticide.
1. Any person who intentionally terminates a human pregnancy at any stage 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.
2. Any person who attempts to intentionally terminate a human pregnancy at any stage 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 does not result commits attempted feticide. Attempted feticide is a class “D” felony.1
3. Any person who terminates a human pregnancy at any stage of gestation, with the knowledge and voluntary consent of the pregnant person, who is not a person licensed to practice medicine and surgery or osteopathic medicine and surgery under the provisions of chapter 148, commits a class “C” felony.
4. This section shall not apply to the termination of a human pregnancy performed by a physician licensed in this state to practice medicine or surgery or osteopathic medicine or surgery when in the best clinical judgment of the physician the termination is performed to preserve the life
or health of the pregnant person or of the fetus and every reasonable medical effort not inconsistent with preserving the life of the pregnant person is made to preserve the life of a viable fetus.
Iowa DISCUSSION Register (see Begin!) and join the discussion here. Vote, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.
The Legislative Findings of Facts Section
Part Two is the Legislative Findings of Facts. The Findings section needs to be thorough enough to court-proof the enforcement section: that is, it needs to contain the evidence and argument which no judge will be able to squarely address and keep abortion legal. It needs to untangle several false assumptions that have confused judges and prolifers, and have prevented prolife lawmakers from directly challenging legal abortion. The wording of this section can be the same in every state.
The evidence which no judge can squarely address and keep abortion legal
1. The Legally Established Evidence of Life. Iowa is obligated to protect the Right to Life of all unborn babies as effectively as it protects born children, in compliance with the 14th Amendment, by Roe v. Wade’s order that when the fact is “established” that “when life begins” is at fertilization, then “of course” the 14th Amendment requires states to outlaw abortion.
No fact could be more legally established than this fact, which is the consensus of all American legal authorities who have taken a position, in all categories of court-recognized finders of facts – juries, expert witnesses, individual judges, state legislatures and Congress. No American legal authority has affirmed that any unborn baby of a human is not a human/person, or that protectable “life begins” any later than fertilization, including Roe which said “the judiciary...is not in a position to speculate”.
JURIES: When prolifers blocked abortionists’ doors until 1993, the only disputed issue at trial was whether human lives were saved. The earliest juries ruled that they were, and acquitted, until judges stopped allowing defendants to tell juries that was their defense. A law school journal reports: “After the court ruled that it would allow the Defense to go to the jury, the ... Clinic dropped the prosecution.” (“Necessity as a Defense to a Charge of Criminal Trespass in an Abortion Clinic”, 48 U.Cin.L.Rev. 501 (1979), in a footnote, p. 502. EXPERT WITNESSES: “If the defense is permitted, evidence is introduced that life begins at conception. This evidence [from doctors or scientists] is rarely contradicted by the prosecution....” Ibid. INDIVIDUAL JUDGES: For example, Judge Clark, who ruled for a defendant who flew in a world renowned geneticist from France to testify. Clark was overturned in ''City of Wichita v. Tilson'', 253 Kan. 285 (1993). STATE LEGISLATURES: “At least 38 states have enacted fetal-homicide statutes, and 28 of those statutes protect life from conception.” ''Hamilton v. Scott'', 97 So. 3d 728 (Ala. 2012) CONGRESS: “‘unborn child’ means a child in utero, and the term ‘child in utero’ or ‘child, who is 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)
#1 DISCUSSION Register (see Begin!) and join the discussion here. Vote, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.
Why factual evidence, legally established, triggers Roe's "collapse"
2. The "Collapse" Clause. Roe v. Wade treated “when life begins” as a question that can only be “established” by court-recognized fact finders. Had Roe thought the issue a matter of law, SCOTUS would not have said “the judiciary...is not in a position to speculate” about such a “difficult question” because “those trained in...medicine...and theology are unable to [agree]”. Roe v. Wade 410 US 113, 159.
Nor would Roe have said the “establishment” of this fact is even possible despite the incompetence of any judge to understand such things, which posits the superior competence of authorities other than SCOTUS: “[Texas argues] that the ‘fetus’ is a person. If this suggestion of personhood is established, the case [for legal abortion], of course, collapses, for the right to life would then be guaranteed specifically by the [14th] Amendment...” SCOTUS never reversed those conditions.
#2 DISCUSSION Register (see Begin!) and join the discussion here. Vote, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.
3. Reality is the Judge of Rulings. “Are babies people or tumors?” is a question about reality, not rulings. Society can never be at peace with answers based on nothing more than opinions, laws, or “value judgments”, but only the answer that is at peace with evidence. If unborn babies are in fact as fully human as any judge, then “of course”, as Roe concedes, abortion needs to be outlawed (in all states), because all who keep it legal are accessories to murder. But if unborn babies are in fact tumors threatening their human hosts, then “of course” abortion must remain legal, because killing nonpersons really isn’t murder, and taking care of one’s own health really is one’s fundamental right. The question must be answered with evidence.
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.
#3 DISCUSSION Register (see Begin!) and join the discussion here. Vote, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.
4. Evidence of Fully Developed Consciousness. No baby is protected in reality except to the extent all babies are protected because (1) There is no nonarbitrary line between birth and conception distinguishing “humans” from “nonpersons”; (2) Without such a line, there can be no stage of gestation at which the deliberate killing of a baby can be objectively distinguished from murder; (3) The failure of some adults to grasp the humanity of babies at any given stage is a dangerous basis for permitting killing, since as many adults fail to grasp the full humanity of quite a number of discrete groups of born persons; (4) The capacity to choose between good and evil – to choose to behave either as an angel or as a demon – is a capacity that distinguishes humans from animals. It is not related to brain size, since animals with much larger brains lack this capacity, while babies with much smaller than adult brains demonstrate this capacity. No known physical process accounts for this ability, supporting the belief accepted by Roe that a “person” is “infused with a soul” whose capacity for discerning good from evil, and choosing between them, and perceiving harm from evil and blessing from good, is not limited to physical body size; (5) Luke 1 says John, at 6 months’ gestation, leaped for joy at the sound of a righteous voice, which shows the same capacity to prefer good over evil that society seeks in its judges; (6) The Bible's description of that capacity validates parents today (and is validated in a secular society today by parents today) who give quality music and other loving experiences to their unborn babies; (7) Roe's statement that a baby who is “recognizably human” is “infused with a soul” underlines the significance of the absence of any line between human souls and nonpersons. The lack of any physical explanation for a conscious soul rules out any reason to link physical immaturity to immaturity of consciousness, if there is even such a thing as immature consciousness. There is no basis for assuming that there is any point where a conscious soul is not fully developed. Therefore there is every reason for concern that destroying the physical home of a human soul is as criminal a loss whether that home is one minute old, one year old, one decade old, or one century old.
#4 DISCUSSION Register (see Begin!) and join the discussion here. Vote, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.
5. 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).
In addition to SCOTUS' regard for congressional findings, the authority of U.S. law is superior to the authority of SCOTUS, in the sense that up until such time as courts declare laws unconstitutional, courts must conform their rulings to them. No court has declared 18 U.S.C. § 1841 or the many similar state laws unconstitutional, despite dozens of challenges. To do so would require the Court to positively affirm that human life does not begin until birth, which no legal authority has done.
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6. Roe Never Denied that All Humans are "Persons". SCOTUS has never denied that all humans are “persons” whose “right to life is...guaranteed specifically by the [14th] Amendment.” Roe v. Wade equates 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,” Id 746-47.
14th Amendment “equal protection of the laws” is for all who are in fact humans. The word “persons” in the 14th Amendment means all humans. Had it been only for those who are legally recognized as human, every deprivation of fundamental rights by any state law would be “constitutional” so long as the law questions whether its victims are “persons in the whole sense”. Courts generally accept that the Amendment obligates not only states, but courts, to protect the rights of all humans.
#6 DISCUSSION Register (see Begin!) and join the discussion here. Vote, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.
7. Congress Already Enacted a Personhood Law. Congress established in 2004 that: “‘unborn child’ means a child in utero, and the term ‘child in utero’ or ‘child, who is 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 is not undermined 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....” Failure to outlaw a harm in a particular situation does not prevent the outlawing that harm in that situation later, and 18 U.S.C. § 1841(c) has no power to prevent states from criminalizing abortion as the 14th Amendment requires once the humanity of the unborn is established by 18 U.S.C. § 1841(d).
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. It is the fact that babies are people that merits their protection. It is the legal establishment of that fact by evidence presented, cited, and tested in court that will make society at peace with an abortion ban, not a Constitutional Amendment. An Amendment will immediately bind courts. But Prohibition (of alcoholic beverages), the 18th Amendment, was repealed 12 years later because Amendments bind; they do not persuade.
#7 DISCUSSION Register (see Begin!) and join the discussion here. Vote, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.
8. Roe's rationale has not been replaced. Planned Parenthood v. Casey, 505 U.S. 833, 945, 954 (1992) did not replace Roe's constitutional basis for legal abortion – inability to tell “when life begins” – with Casey's new basis: how much women had come to “rely” on abortion. Casey did not say “when life begins” no longer matters, or that relying on abortion can justify keeping abortion legal after it is known that it kills people.
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9. SCOTUS did NOT say Personhood Laws are Irrelevant, but that without Penalties they can't generate a case. However, they are Strong Evidence in a case. (Not that more are needed to topple legal abortion.) Webster v. Reproductive Health Services (492 U.S. 490), 1989 did not say personhood laws have no power to topple Roe, but only “It will be time enough for federal courts to address the meaning of the [Personhood law] should it be applied to restrict the activities of [the abortionists] in some concrete way.” Id at 506. In fact, Webster said clear state penalties for abortion would trigger SCOTUS review of Roe itself: “there will be time enough to reexamine Roe, and to do so carefully... When the constitutional invalidity of a State's abortion statute actually turns upon the constitutional validity of Roe”, Concurrence by O'Conner, Id. at 526.
#9 DISCUSSION Register (see Begin!) and join the discussion here. Vote, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.
10. "Exceptions" do NOT Mitigate Personhood Assertions. Roe's Footnote #54 is not a ruling that the consensus of fact finders is disproved by “the exception...for the purpose of saving the life of the mother” and the failure of abortion laws to charge the aborting mother with being a “principal or an accomplice” to murder. Footnote 54 was part of a 65 page search for some explicit statement; it was alleged that there was none. Had there been found explicit statements, that would have satisfied the Court, so far as we can determine from reading Roe.
Although the ideal of law is equal protection of all humans, humans cannot be perfect. Certain exceptions are required for political, legal, and Biblical reasons which do not mitigate the established reality that all unborn babies are fully human, with conscious souls, from fertilization. The very concept of “innocent until proved guilty” which is necessary politically, legally, and Biblically, is an example of the inability of human courts to equally protect every human from crime, without raising any doubt whether crime victims are human.
The 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). 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. Even our Good Samaritan laws, requiring people at accident scenes to help, are sparse and inconsistent.
Biblically and politically, 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.
#10 DISCUSSION Register (see Begin!) and join the discussion here. Vote, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.
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 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.
#11 DISCUSSION Register (see Begin!) and join the discussion here. Vote, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.
12. Constitutional Pressure on States to Outlaw Abortion. This state has no further legal obligation to refrain from criminalizing abortion, or to support or protect abortion in any way. States are no longer barred from “substantial” criminalization of abortion, for the express purpose of restricting abortion, to save lives. Nor are states limited to the “least restrictive means possible” of the “fundamental right” to abortion that is “necessary to achieve” some other “compelling government interest” than saving lives whose humanity SCOTUS “is in no position to speculate” about, because while courts may be forgiven for disregarding evidence not presented in them, now there remains no court-recognizable basis for doubt that abortion kills innocent human beings, which is legally recognizable as murder, which is neither legal nor constitutionally protected, much less a fundamental right. In view of this uncontradicted consensus, Iowa's legal liability from noncompliance with the 14th Amendment, by failing to criminalize abortion, is greater than any legal liability from taking corrective action in advance of indecisive courts.
#12 DISCUSSION Register (see Begin!) and join the discussion here. Vote, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.
13. One State may cite the Evidence that Requires Outlawing abortion, but that Reality Compels All States. Criminal laws against abortion by this state are not bold, legally dubious attempts by one state to rewrite the legal landscape for the entire nation, but will merely bring state law into conformity with federal law and precedent, including the requirements of Roe v. Wade itself. (However, the evidence of unborn reality which will not only justify but require an abortion ban in Iowa will also justify and require an abortion ban in every state.)
#13 DISCUSSION Register (see Begin!) and join the discussion here. Vote, correct, improve, propose, explain, criticize, and/or send money. See beginning for more ideas.
14. Judicial Interference with Constitutional Obligations. Any judge or court which attempts to block Iowa's effort to bring its laws into conformity with the Constitution violates Roe v. Wade, interferes with Iowa’s compliance with federal law, and is an accessory to genocide according to federal law. Any state judge interfering with Iowa’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 Iowa Constitution, which is Malfeasance in Office, a ground of impeachment. Should any federal judge so interfere, Iowa appeals to its congressional delegation to examine similar grounds for disciplinary action. (For example, see “Bringing the Courts Back Under the Constitution”.
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15. Expedited Review. Any court review of this law must be expedited, since lives are lost with each day that courts delay.
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