A Law Designed to Force Courts to Address Evidence of Life
- 1 Ending legal abortion everywhere in close to a year, requires a law that:
- 2 (The Enforcement Section)
- 3 (The Legislative Findings of Facts Section)
- 3.1 The Consensus of EVERY Category of Court-Recognized "Finders of Facts" is Evidence which No Judge can Squarely Address and Keep Abortion Legal
- 3.2 The Overlooked Authority of Court-Recognized Facts
- 3.2.1 2. Roe did NOT say Babies are Non-Persons “as a Matter of Law” Making Irrelevant the FACT that they are Fully Human
- 3.2.2 3. Courts Accept Legislative Statements of Facts
- 3.2.3 4. Heartbeats & Brain Waves are Evidence of Life
- 3.2.4 5. Reality Trumps Rulings - "Stare Decisis" exception: a "mistake of fact"
- 3.2.5 6. Not only Physically Human from Fertilization, but Souls have no Known Pre-conscious Stage
- 3.3 Myth Busters
- 3.3.1 7. Congress Already Enacted a Personhood Law - as Strong as a Constitutional Amendment - 15 years ago!
- 3.3.2 8. Roe Never Denied that All Humans are "Persons"
- 3.3.3 9. Roe's Rationale has NOT been Replaced
- 3.3.4 10. SCOTUS did NOT say Personhood Laws are Impotent
- 3.3.5 11. “Exceptions” do NOT Mitigate or Undermine Personhood Assertions
- 3.4 Conclusions
Ending legal abortion everywhere
in close to a year,
requires a law that:
- contains evidence which no judge can squarely address and keep abortion legal anywhere: that unborn babies are real people – established by the consensus of court-recognized factfinders: juries, expert witnesses, 38 states, judges, and Congress;
- contains argument that addresses myths and misunderstandings about abortion jurisprudence;
- substantially restricts abortion, ruling out the usual defense for lesser restrictions: (such as a 3 month murder season ["heartbeat" ban], sanitizing the murder rooms ["medical standards"], or making sure moms know they are murderers ["informed consent"): that they are not a “substantial” “undue burden” on a woman’s right to murder;
- provides no excuse for judges to dodge the evidence. 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, freeing lawmakers to work out the challenging details; and
- orders courts to “expedite” any review, and/or that enacts the measures on page XXXIII of "How States can Outlaw Abortion in a Way that Survives Courts". (See link, next paragraph)
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.
Register (see Begin!) and join the discussion.Vote for individual sections after each section, and/or vote at the end for this strategy in general. Sign your name with 4 tildes ((~~~~)). Can you improve it? If your improvements are minor - not changing the idea, make it directly where you see a problem, and signing is optional. For substantial corrections, propose them after the problem section and sign. When a proposed replacement after a section has more votes than the version in the section, they may trade places. If your observations are not about any specific part of this document but are general, please add them to the "Discussion" page under "This Page" in the left column. </span?
(The Enforcement Section)
Part One is the enforcement section of the legislation: All laws have an enforcement section, with definitions of criminal actions and penalties for committing them. Many have an additional “findings” section.
The Enforcement Section must restrict abortion substantially. This is what every state has avoided for 46 years, with the exception of Rhode Island in 1973 – whose appeal SCOTUS would not hear, and Alabama in 2019, which courts have only begun to hear as of this writing.
Several states have passed or are considering Heartbeat Bills, which are assumed by prolifers to substantially restrict abortion; but the argument in court, in Iowa, was that 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”. Elsewhere the argument was (surely I have this wrong) that legislatures can redefine “viable” to mean “able to survive until birth, if not murdered in the womb”. (Roe said states can protect “viable” babies, which Roe defined as able to live outside the womb if delivered early.)
There are complicated reasons why no state appearing before SCOTUS has substantially restricted abortion, but has instead aimed at some other “compelling government interest” than saving lives. But as long as restrictions of abortion are minor, their court reviews will be rocky platforms for placing “when life begins” before courts. The normal defense will instead still be that the prolife laws do not substantially restrict – are not an “undue burden” on – a woman's right to manage her health.
Not only do they not “substantially” restrict abortion, the defense goes, but their purpose is not to restrict abortion at all: their purpose is not to save lives.
In order to rule out that defense, the enforcement section needs to (1) substantially reduce abortion, enough to actually close down abortionists, and (2) have specific penalties for specific situations, so courts won't have to guess how prosecutors will proceed.
The following paragraph is an example of a bill (a proposed law) that would alter law minimally and simply yet achieve a “substantial burden” on legal abortion.
The restriction must be substantial, yet simple. An example.
"Bills" in legislatures are proposed changes to laws. CAPITALS indicate proposed additions. (Parentheses) indicate proposed deletions.
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. [The next three paragraphs would be altered similarly.] ANY COURT REVIEW OF THIS LAW MUST BE EXPEDITED, SINCE LIVES ARE LOST WITH EACH DAY THAT COURTS DELAY.
Background: Expedited Review. 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.)
(The Legislative Findings of Facts Section)
Part Two is the Legislative Findings of Facts. (The part which has no penalties, but instead contains principles, facts, or arguments to help judges apply the Enforcement Section.) This section of the bill is sometimes called “Findings of Facts”, “Legislative Findings”, “Preamble”, etc. Sometimes, as here, it contains facts or legal arguments designed to help the law survive courts.
Unlike the Enforcement Section which, in our case, must be free of distractions, the Findings Section must 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.
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. Ideally the arguments will satisfy lawyers and yet be understandable to all, and as persuasive in the “Court of Public Opinion” as in courts of law.
Many of these statements will seem idiotic to most 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 assumptions to which these paragraphs respond may think them so obvious as to be stupid to even say. The book of which this wiki article is a summary quotes from Supreme Court rulings to which these paragraphs respond.
The Consensus of EVERY Category of Court-Recognized "Finders of Facts" is Evidence which No Judge can Squarely Address and Keep Abortion Legal
1. The Legally Established Evidence of Life.
Finding #1: This state must “of course” outlaw abortion, Roe v. Wade ruled, when the fact is “established” that “life begins” at fertilization. No fact could be more legally established, being the consensus of all American legal authorities who have 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, including Roe which said “the judiciary...is not in a position to speculate”. (97 words)
JURIES: When prolifers blocked abortionists’ doors until 1993, the only seriously 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 present their defense to juries. 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, 502 (1979).
EXPERT WITNESSES: “If the defense is permitted, evidence is introduced that life begins at conception. This evidence [from doctors, geneticists, 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 overruled with zero mention of the evidence 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). Clause (c) doesn’t diminish this fact.
That’s the defense that will court-proof the law.
How much simpler can a defense get? It is easy enough for a child to understand, and hard for any adult to explain how any judge could squarely address that defense, and keep abortion legal.
But why have these facts established by court-recognized fact-finders not been thought helpful by prolife lawmakers and attorneys?
Why were they not mentioned by any state appearing before SCOTUS?
More assumption untangling is needed.
The Overlooked Authority of Court-Recognized Facts
2. Roe did NOT say Babies are Non-Persons “as a Matter of Law” Making Irrelevant the FACT that they are Fully Human
Finding #2: Lower appellate courts said Roe ruled that unborn babies are non-persons “as a matter of law”, which makes irrelevant the fact that they are humans and that killing them is murder. That is absurd, erroneous, and the opposite of what Roe said. Roe treated “when life begins” as a question whose answer can only be “established” by fact finders. Had Roe thought the issue a matter of law, it 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 p. 159. Nor would Roe have said this fact might one day be “established” despite the inability of any judge to understand such things, which infers superior ability in other authorities: “[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.” Nor did SCOTUS later say “when life [in fact] begins” no longer matters. If the fact that we are people could be made irrelevant because “as a matter of law” “the judiciary is in no position to speculate” whether we are people “within the language and meaning of the 14th Amendment”, (phrases from Roe) slavery would still be legal. The Amendment protects those who are in fact people – what is irrelevant is whether babies are people as a matter of law. “To say that the test of equal protection should be the ‘legal’ rather than the biological relationship is to avoid the issue. For the Equal Protection Clause necessarily limits the authority of a State [or its judges] to draw such ‘legal’ lines as it chooses.” Glona, 391 U.S. 73, 75 (1968)
Finding #2 responds to the excuse that judges made up to dodge evidence of Life: that Roe made “when life [in fact] begins” irrelevant by ruling “as a matter of law” that babies are not real people. It began in 1973 with Doe v. Israel, 358 F. Supp. 1193: “To me the United States Supreme Court made it unmistakably clear that the question of when life [in fact] begins needed no resolution by the judiciary as it was not a question of fact. ... I find it all irrelevant....” This became the excuse for judges to not even let juries hear evidence of Life in hundreds of abortion prevention trials - see City of Wichita v. Tilson, 253 Kan. 285 (1993).
SCOTUS said no such thing – but not that SCOTUS is anxious to hear evidence. From Casey (1992) to Hellerstedt (2016), SCOTUS has not allowed abortion restrictions that are “substantial” enough to be an “undue burden” on a woman’s choice, and SCOTUS has dodged many cases raising evidence of unborn humanity.
But the states reviewed did not raise it. In the absence of any challenge before the Supreme Court to Roe’s claim that judges are “unable to speculate” about “when life begins”, it has been logical for SCOTUS to overturn restrictions “substantial” enough to be an “undue burden” on “a woman’s choice”.
Rather than challenge SCOTUS’ premise that no one knows if babies are people, states have dodged the “undue burden” standard by thinking of restrictions that aren’t “substantial”, and that don’t “intend” to restrict abortion. In other words they have invented other “compelling government interests” than “saving human lives”. For example, sanitizing the murder rooms, a 3 month murder season, or making sure moms know they are murderers.
SCOTUS never said even if babies are humans, murder is a mother’s right. Now that we know, it is whether the unborn are “persons” as a matter of law that is irrelevant.
3. Courts Accept Legislative Statements of Facts
Finding #3: 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). Aside from 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 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 much later, which no legal authority has done, and for which no evidence exists.
US. v. Caroline adds that the evidence in support of a law doesn’t have to be overwhelming: “....the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist. ...But by their very nature such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it." U.S. v. Carolene Products, 304 U.S. 144, 152 (1938)
The evidence of court recognized fact finders, the power of legislative findings, and the general power of laws to shape court rulings, shouldn't be necessary to inform judges as if they were otherwise helplessly ignorant. The fact that this evidence and argument has not been before the Supreme Court does not excuse justices for ruling as if they had never heard of it. True, it is considered unethical for judges to investigate facts on their own; they should normally limit their review of facts to those facts presented by the parties to the case, where the other side has an opportunity to respond. But even without formal presentations of this evidence, this information falls under "common knowledge", of which judges frequently, and quite ethically, take judicial notice.
Besides, this kind of evidence has been presented in court - in cases which the Supreme Court chose not to hear. And even those cases which SCOTUS turned down placed legal briefs in the record which were read by at least some of the clerks of the justices.
So the justices are not that innocent. Their ignorance is willful.
4. Heartbeats & Brain Waves are Evidence of Life
Finding #4: 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.
5. Reality Trumps Rulings - "Stare Decisis" exception: a "mistake of fact"
Finding #5: “Are babies people or tumors?” is a question that can only be answered to the satisfaction of society by factual evidence, not rulings. If “fetuses” are in fact no more human than tumors, then “of course” killing nonpersons isn't murder, and taking care of your health is a fundamental right. But if unborn babies are in fact as fully human as any judge, then “of course”, as Roe concedes, abortion needs to be outlawed. Reality is the standard by which rulings are judged. Stare Decisis criteria acknowledge that an erroneous factual premise is a ground for overturning precedent.
Justice Brett Kavanaugh, during his confirmation hearing, described Roe v. Wade as “precedent upon precedent”, and yet when asked by a Democrat about a precedent that Democrats don’t like, he explained that discovery of a “mistake of facts” is one of the “Stare Decisis” grounds for overturning precedents. 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
6. Not only Physically Human from Fertilization, but Souls have no Known Pre-conscious Stage
Finding #6: Part of Roe’s definition of “person” was “infused with a soul”. Roe thus affirms 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 (1) self awareness, (2) choice between good and evil – to behave either as an angel or as a demon, and (3) love: to choose to sacrifice one’s interests for another. John 15:13. These differences justify legal protection of humans beyond protections of animals. They are not explained by any known physical process. 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 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 a preference for good over evil: a choice. 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.
7. Congress Already Enacted a Personhood Law - as Strong as a Constitutional Amendment - 15 years ago!
Finding #7: 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 out of step 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. 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 only bind; they do not necessarily persuade.
8. Roe Never Denied that All Humans are "Persons"
Finding #8: 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”. 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”
Even the National Right to Life Committee thinks not all humans are legally people: “...laws treating feticide as murder do not need to define fetuses as persons. California’s law is illustrative. It defines murder as the killing [not of a ‘person’ but] of a human being or a fetus. - Professor Michael Dorf, Supreme Court clerk, cited as correct by the National Right to Life Committee. victims/roesupportersspeakuvva nrlc.org
The myth that proof that babies are humans falls short of proving they are “persons” makes 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 keeps many prolifers from supporting legislation that will challenge legal abortion with the overwhelming evidence we already have, until we pass more “personhood laws” and add “babies are persons” to the U.S. Constitution.
The assumption that Roe ruled that not all humans are the “persons” protected by the 14th Amendment leads prolifers to think the consensus of fact finders that babies are humans doesn’t count as evidence that will trigger Roe’s “collapse” clause.
Had the 14th Amendment “equal protection of the laws” been only for those who are legally recognized as human, we could still have slavery simply by declining to legally recognize a minority as fully human.
All pro-slavery judges would need to do would be to rule that blacks are only 3/5 human according to the Constitution. Or that immigrants aren’t treated by our laws as “persons in the whole sense” when they are prosecuted for what their parents did with them, bringing them here as babies, so we can enslave them.
It is the fact that unborn babies are living human children that makes killing them murder, not what any law says about it, or even what the Constitution says about it. That’s what makes the consensus of court-recognized fact finders a stronger legal reason to end legal abortion than a Life Amendment.
Which makes it insane for prolifers to not even mention this legally recognizable evidence in each and every prolife case!
The quibble of Roe was not whether babies are “persons” or merely “humans”, but whether very young babies depicted in Dorland’s Illustrated Medical Dictionary as indistinguishable from pig fetuses are “recognizably human”.
9. Roe's Rationale has NOT been Replaced
Finding #9: 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 legal murder. 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.
Finding #9 responds to a widespread view, articulated by Clark Forsythe of Americans United for Life, that “The ‘collapse clause’ fallacy...completely overlooks the fact that the rationale of Roe was substantially changed in Planned Parenthood v. Casey in 1992. The Court shifted from an historical rationale for Roe to a sociological rationale---the idea that women need abortion as a back-up to failed contraception. Blackmun's rationale for Roe became irrelevant with the Court’s adoption of this ‘reliance interest’ rationale in Casey.” (This statement was given by Forsythe to Chuck Hurley, legal counsel for The Family Leader, 10/27/2010. Hurley had asked Forsythe to comment on the opportunity I present. For his complete statement and my response see AUL Missing Opportunity)
Casey did not say it no longer matters whether the unborn are humans/persons.
Casey did not say Roe’s rationale that “personhood is not established” has been replaced with “women rely on abortion now”.
Neither the opinion nor the dissent even mentioned Roe’s rationale. At least not explicitly. No evidence of human life was presented, discussed, or rejected.
However, an unidentified “outer shell of Roe” was discussed in a dissent:
“The joint opinion...retains the outer shell of Roe...but beats a wholesale retreat from the substance of that case.... Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.” (p. 945, 954, Concurrence in part, dissent in part of Rehnquist, White, Scalia, Thomas)
What other “shell” is sturdy enough for legal abortion to “hang” on, than “personhood is not established”?
To say a thing “hangs” on another thing is to suggest that without the other thing, the thing would “collapse”. So whatever still sustains abortion’s legality must still be subject to Roe’s “collapse” clause.
The majority opinion is silent on any “shell” or about any other principle upon which legal abortion might “hang”. But the dissent's metaphor well describes what the majority did. It is obvious that “reliance interests” alone can't sustain doubt whether abortion murders conscious human beings, without which abortion is intolerable.
The same concurrence/dissent identifies “the whole argument” of prolifers as a finding of facts. “The unborn child is [in fact] a human life.” There is no muddiness about “persons” versus “humans” or about “a matter of law” trumping facts. If prolifers are right that the unborn are “humans”, then SCOTUS is wrong to protect their killers.
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. p. 982
The SCOTUS majority has never said otherwise.
“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.
10. SCOTUS did NOT say Personhood Laws are Impotent
Finding #10. SCOTUS said that without penalties, a state personhood law can’t Generate a case. SCOTUS did not deny that state personhood laws are Strong Evidence in a case. (Not that more evidence than the uncontradicted findings of 38 states is needed to topple legal abortion.) 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 “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. In fact, Webster said clear state penalties for abortion might 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.
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.
“...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)
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 is enough, it could go either way. Now 38 states concur with Missouri.
11. “Exceptions” do NOT Mitigate or Undermine Personhood Assertions
Finding #11: 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, humans cannot be perfect. 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.
12. “Abortion is Legal” no Longer
Finding #12: 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.
The goal of this defense is a challenge to legal abortion that is irresistible to judges. 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.”
13. The Constitution Requires States to Outlaw Abortion
Finding #13: There now remains no court-recognizable basis for doubt that abortion kills innocent, human beings, which is not a fundamental right. Therefore states no longer need to enact “the least restrictive means possible” of achieving some OTHER “compelling government interest” than saving lives whose humanity used to be beyond the grasp of the Supreme Court. States are no longer barred from “substantial” criminalization of abortion for the express purpose of restricting abortion in order to save lives. States have no further legal obligation to refrain from criminalizing abortion, or to support or protect abortion in any way. No “burden” on murder can be “undue”. 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 outlaw abortion, is greater than any legal liability from taking corrective constitutional action in advance of indecisive courts.
14. The Evidence that Any State may Cite, that Requires Outlawing Abortion, Compels All States
Finding #14: 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 requires an abortion ban in this state will also require an abortion ban in every state.)
Tragic Assumption: outlawing abortion in every state is impossible – our greatest hope is to overturn Roe so states can again individually decide whether to protect infanticide.
This view dominates prolife legal thinking, for good reason: it has been the view of conservative Supreme Court justices Scalia, White, and Thomas. In Casey, they 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.”
That was 27 years ago, that they hadn’t noticed the growing evidence of court-recognized fact finders. By that time, there had been thousands of expert witnesses in genetics and medicine and dozens of juries, in those embarrassing abortion prevention trials, but the unborn victims of violence legislation that is now law in 38 states and Congress hadn’t begun. If they have noticed since, however, they haven’t said so.
Are unborn babies people, or tumors? This is a question with which society will not be made at peace by opinions, laws, or “value judgments”, but only by evidence. This is a question about reality, not rulings.
If unborn babies are in fact as fully human as any judge, with the discernment a judge has between good and evil, which a famous unborn baby once demonstrated by leaping for joy at the sound of a good voice as Luke 1:39-44 reports – the mark of a conscious “soul” which Roe correctly observes is part of the meaning of “person” and of “recognizably human”, then “of course”, as Roe concedes, abortion needs to be outlawed.
In every state, Roe meant.
Conversely, if unborn babies are in fact only humans “potentially” in the uncertain future, but meanwhile are tumors threatening their human hosts, then “of course” abortion must remain legal in every state.
Killing nonpersons really isn’t murder, and taking care of one’s own health really is one’s fundamental right. For as long as SCOTUS can dodge evidence that challenges its premise that judges are “in no position to speculate” whether abortion is murder, the 14th Amendment really does empower courts to stop states from trampling fundamental rights. (Its original mission was to stop states from legalizing slavery.)
The question must be answered with evidence. If there is evidence that unborn babies are not as fully human as any judge, why has no court-recognized fact finder in 46 years been able to find any?
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.
In ruling that unborn babies are not “persons” “as a matter of law”, lower courts have not only violated Supreme Court precedent, but plain reason. The only legitimate reason for the Supreme Court to stop protecting a woman’s fundamental right to take care of her own health is evidence that her unborn baby is a distinct human soul whose health must be equally protected; and when that kind of evidence is finally presented to the Supreme Court in a way the Court cannot dodge, how will it be possible for the Court to allow any state to continue the carnage?
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 Fallout of the Assumption. Because of the myth that the end of Roe will return to each state the choice between life and death, prolife legislatures and lawyers have not presented the evidence of unborn personhood from other states.
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, and maybe with a few medical authorities from within their own state’s borders. 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 “life begins” at fertilization.
Only two legislatures have completely outlawed abortion with serious penalties. When Rhode Island’s did it, it didn’t cite any other court-recognized fact finders than itself, because there wasn’t that much to cite in 1973. But when the Alabama legislature did it May 15, 2019, the only rationale for omitting evidence outside Alabama’s borders was articulated in an Amicus brief by an Alabama legal team in an Alabama case whose stated goal is to let Alabama decide what is allowed within its own borders.
If each state can decide for itself “when life begins”, (as opposed to this being a fact-driven question which, once established, must bind every state), then the consensus of fact finders outside Alabama’s borders really is irrelevant.
Roe clearly accepted as possible that fact finders might eventually “establish” what Wade presumed, but Roe declined to be moved by the evidence from only one state, when Mr. Wade, Texas’ Attorney General, claimed that it was Texas’ position that unborn babies are fully human. Unfortunately the Supreme Court has never said how much more evidence would be necessary to “establish” that.
However, it is clear that the Court didn’t think just one single state’s assertion was enough. So can prolifers today logically expect the assertion of one single state to be enough, with no need of more, when prolifers could be citing Congress, the 38 states, thousands of uncontradicted expert witnesses, dozens of juries, and several individual judges who have taken a position?
For as long as prolifers, their lawmakers, and lawyers, concede the goal of outlawing abortion in every state, it would seem unlikely, indeed not fully rational, for them to cite the full range of court-recognizable uncontested evidence from all court-recognized finders of facts in every court-recognized category of finders of facts.
And 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 allow the fundamental right of women to take care of their own health to be compromised 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 wiki article is excerpted. See links at head of this article.)
15. Judicial Interference with Constitutional Obligations
Finding #15: Any judge or court which attempts to block this state's effort to bring its laws into conformity with the Constitution violates Roe v. Wade, interferes with this state’s compliance with federal law, and is an accessory to genocide according to federal law. 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.
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 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.