The consensus of court-recognized fact-finders that babies are people even before they are born

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This article was started by Dave Leach R-IA Bible Lover-musician-grandpa (talk) 04:23, 23 December 2019 (UTC). Interaction from other writers will be distinguished from my writing with horizontal lines above and below. Your response to anything you read here is most welcome. Please add your response next to what you are responding to. If your reaction is not to any specific part of this article, please add general comments on the "Discussion" page.

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. Courts are bound to accept congressional findings of facts that are not obviously irrational.

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)

These statutes not only “protect life from conception”, but explicitly find as fact that babies are humans/persons from conception. Courts accept legislative findings of facts that are not obviously irrational. U.S. v. Carolene Products, 304 U.S. 144, 152 (1938). The constitutionality of many of these statutes has been challenged; all have survived.

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).

Beyond that report, it is hard to get a list of specific cases where juries have so found, because juries seldom give the reasons for their acquittals. But one example from Iowa, where the judge articulated the basis for the jury’s acquittal(!), is State v. Brouillette, et al, Johnson County, Iowa, 1989.

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).

Roe didn’t say babies aren’t “persons”. Roe said “the not in a position to speculate”, but if that (fact) is ever “established” then “of course” legal abortion must end – meaning in all states. If the consensus within every category of court-recognized fact-finders is still not enough for judges to know a fact, it is impossible for any judge to know anything.


(Page numbers are from “How States can Outlaw Abortion in a Way that Survives Courts)


From Page XV: Myth Buster: Congress has Already Enacted a Personhood Law

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 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.

  1. 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 unbornvictims/UVVAHJCreport2004.pcif

“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

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.


From Page XII: 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)


From page LXIV: An Iowa Jury Acquittal

I, Dave Leach, was a defendant in what may have been the last trial where a jury was allowed to hear the defense. The case was State v. Brouillette, et al, Johnson County, Iowa, 1989. 155 of us were arrested January 26, 1989 for blocking the doors of the Emma Goldman clinic in Iowa City, Iowa. Rather than pack all 155 in the court room, 16 of us were tried in the first batch. It was assumed that what happened to them would drive what happened later to the rest; especially since J. Patrick White, the prosecuting county attorney, had told newspapers that if the first 16 were acquitted there is no way he would prosecute the others.

But after the jury acquitted the first 16, White refused to dismiss, and that is the only reason we have an official court record documenting that the Defense of Justification was the only issue before the jury. The jury didn't say so, but the judge did, in his ruling dismissing the remaining charges.

He wrote that both sides stipulated to (officially agreed about) the facts. “Each Defendant stipulated to his or her identity; to entering and remaining upon public property; and to failing to leave said public property after being notified and requested to vacate by persons whose duty it was to supervise the use and maintenance of this property. By this stipulation, the sole element of the offense of Criminal Trespass which remained to be proven was whether each defendant acted without justification. The verdict of the jury indicates the State failed to prove, beyond a reasonable doubt, the one essential element of the charge which remained in issue. In a trial of the remaining 138 Defendants, [one of the 155 arrested was juvenile and was not charged], a jury would be presented with this identical issue. (So the remaining charges should be dropped by the theory of Issue Preclusion - if Joe is found innocent after doing something, Jack should be after doing the same thing.)”

Northern Virginia Women's Medical Center v. Balch, 617 F.2d 1045, 1048-49 (4th Cir. 1980) refers to two unreported cases where “necessity” led to acquittals, where it is not clear whether it was a jury or “bench” trial – so perhaps these cases should be listed under the evidence of individual judges.

Whether the “necessity defense” is a proper defense is irrelevant. Every state appellate court that has ruled on the necessity defense in an abortion prevention case has said it is not available because whether babies are in fact human beings is irrelevant – Roe ruled “as a matter of law” that they are not “persons”. Whether or not the defense is proper, the fact is that when it was allowed, juries, the “finders of facts” as every judge tells every jury, acquitted, when informed that it would be proper to acquit if they thought human lives were saved by the defendants. That constitutes a consensus of juries that babies are fully human from conception. (“Necessity defense” is only the most common name for the ancient common law defense, going at least as far back as Jesus. In Iowa 704.10. the defense is called “Compulsion”.)

Elsewhere I argue that the rulings by lower appellate courts that Roe made jury findings of unborn personhood irrelevant invoke Supreme Court rule 10c, which says when lower courts rule contrary to the Supreme Court, those are the kinds of cases the Supreme Court wants to hear.

Mark 3:1 And he entered again into the synagogue; and there was a man there which had a withered hand. 2 And they watched him, whether he would heal him on the sabbath day; that they might accuse him. 3 And he saith unto the man which had the withered hand, Stand forth. 4 And he saith unto them, Is it lawful to do good on the sabbath days, or to do evil? to save life, or to kill? But they held their peace. 5 And when he had looked round about on them with anger, being grieved for the hardness of their hearts, he saith unto the man, Stretch forth thine hand. And he stretched it out: and his hand was restored whole as the other. 6 And the Pharisees went forth, and straightway took counsel with the Herodians against him, how they might destroy him.

A “final order” in substance that babies are people

City of Wichita v. Tilson was a “final judgment” in substance that human life begins at conception, because although it was technically reversed on appeal, the reversal was of a defense that did not exist, while the defense that was raised was never addressed. The Kansas Supreme Court pretended that Elizabeth Tilson’s defense was her “religious beliefs” - a defense never raised, but a defense much easier to ridicule. In fact Tilson had flown in the world’s top geneticist from France, which had persuaded District Judge Paul Clark. The Kansas Supreme Court did not mention that. The Court did not rule that unborn babies are not humans but said Roe made that irrelevant.

Whether or not Roe made that fact irrelevant or made it dispositive, the clear fact is that the district court ruled that babies are people, and no court reversed that finding, leaving the district court’s finding of fact a “final order” in substance.

Planned Parenthood of Mid-Iowa v. Maki. This same “Straw Man” diversion was employed in an Iowa precedent. It needs to be exposed in order to remove the confusion that has suffocated prolife jurisprudence.

P. 59-61: The principal error in Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637 (1991), was that the Court did not address her defense. Judy Maki invoked the Necessity Defense to justify actions necessary to save human lives. The Court completely ignored that defense and substituted, for it, a defense which Maki did not raise, which Maki considered as ridiculous as everyone else thought it was: that Maki invoked the Necessity Defense “to excuse criminal activity by those who disagree with the policies of government.”

In October 1990, Planned Parenthood filed a petition seeking to permanently enjoin Maki from trespassing upon its property, disrupting its business, and interfering with its patients. Maki contends that her acts do not constitute a trespass but instead are justified based on the defense of necessity. We apply the necessity defense only in emergency situations where the threatened harm is immediate and the threatened disaster imminent; the individual must be stripped of all options available to avoid both evils. State v. Walton, 311 N.W.2d 113, 117 (Iowa 1981). The necessity defense is generally not available to excuse criminal activity by those who disagree with the policies of the government. United States v. Kabat, 797 F.2d 580, 591 (8th Cir.1986). Thus, we do not believe the necessity defense has been established here to excuse Maki's repeated trespasses. NOW v. Operation Rescue, 747 F. Supp. 760, 770 (D.D.C.1990).

Even if Maki had actually “disagreed with the government”, as even courts do from time to time, and even if that were part of Maki’s motivation, did the Court think that when there is an additional reason for doing something besides the reason that justifies it, that it isn’t justified?

The ruling doesn’t ignore the name of the defense or of its elements. But it did not acknowledge the object of the defense: the harm which the defendant’s action had averted.

A third problem was giving Planned Parenthood standing to sue for the injunction against Maki. When a plaintiff in a lawsuit is at least partly responsible for the harm the suit seeks to correct, the plaintiff does not have the “clean hands” needed for standing to sue. Now that abortion is legally recognizable as the legal equivalent of murder, abortionists have no legal right to sue anybody for interfering with murder. The Court should have considered Maki’s considerable evidence that human life/personhood begins at conception. It was not irrelevant.

A fourth problem with the ruling was that it so misapplied the Kabat case as to reach the opposite result that Kabat sought while citing Kabat as its authority for it.

Kabat said courts can’t allow Necessity to establish, as a “harm”, what elected legislatures have fixed as necessary and good – because (1) that would be tantamount to courts reversing legislatures, which courts must never do. And because (2) they had an alternative way to reach their goal without breaking the law: the political process. (The case was about protesters at a nuclear facility.) But Judy Maki (1) supported what legislatures were trying to do and only wanted the lower appellate court to do what SCOTUS directed them to do, and (2) when laws are vacated by courts, the political process is a fragile remedy.

Maki ruled that courts can’t allow Necessity to establish, as a “harm”, what nearly every legislature in America had established as a crime until SCOTUS overturned them all on the ground that SCOTUS wouldn’t be “in a position to speculate” whether it was a harm, before being informed by fact finders such as those which Maki silenced.

Expert Witnesses

How do we know the “expert witnesses” in abortion prevention trials, described in the Cincinnati Law Review article, numbered in the thousands?

Because the number of arrests reported by Operation Rescue in about 1990 was about 60,000. (Google "60,000 arrests" "operation rescue".) And because we “rescuers” were primed to do two things in court: (1) argue the “Necessity Defense” (“it was necessary to block the killing doors in order to save lives”) and (2) find a doctor, geneticist, or similar expert to testify as an expert witness that “life begins at conception”. I did that in my own case.

The judiciary has suppressed all that information by consigning most of it to “offers of proof” and by never reporting it in appellate opinions. LexisNexis doesn’t offer searches on district court evidence, or to learn in which cases Necessity was raised. To recover that treasure trove of content one would need to know the case numbers, and then would need to pay high dollars for court transcripts, if court reporters even keep their notes that long.

But we can be confident that huge body of evidence was rarely if ever refuted for three reasons: (1) because the Cincinnati Law Review article says so, (2) because no American legal authority has ever dared say “life begins” any later than fertilization, and (3) by the principle of the 1735 John Peter Zenger trial: “Suppression of evidence is the strongest evidence.”

Other myths and facts addressed in the first 25 pages of “How States can Outlaw Abortion in a Way that Survives Courts”: Expedited Review “since lives are lost with each day that courts delay <> Whether we are people is not a “matter of law” <> Roe Never Denied that All Humans are “Persons” <> Roe's rationale has never been replaced <> “Exceptions” don't Undermine Personhood Assertions <> Heartbeats & Life <> States face Constitutional Pressure to Outlaw Abortion <> One State's Evidence Can Compel All States <> Judicial Interference with 14th Amendment.