ABORTION: Why the Supreme Court Got it Wrong in Roe v. Wade (1973)

RIGHT TO LIFE - fetus in hand (from Prevent Disease Website)

(Photo Credit – Prevent Disease website)

by Diane Rufino, February 22, 2019

On January 22, 1973, the Supreme Court handed down one of the most controversial opinions in its history. It issued its opinion regarding the constitutionality of state laws banning and even criminalizing abortion. In striking down those laws, it identified a new fundamental right – the right of a woman to have an abortion, at essentially any time during her pregnancy and for whatever reason. It decided the case of Roe v. Wade.

States are allowed to regulate a wide variety of actions in the interest of protecting the people within its borders. These are the laws that are pursuant to its vast “police powers” – the power to regulate for the health, safety, welfare,, and morality of its citizens. These are the powers reserved to the states under the 10th Amendment, and the powers intended to remain with each state. Aside from these police powers (the 10th Amendment), the Constitution puts certain limits the states’ authority to regulate. One of those limits is when there is an individual liberty right at stake. (And not just any “liberty right” at that; the right at stake must have been a recognized liberty right at the time the 14th Amendment was adopted, which was 1868. For any other asserted liberty right, the Constitution would need to be amended per Article V’s amendment process. See the Appendix at the end of the article). In Roe v. Wade, Norma McCorvey (aka, petitioner Roe) argued that the Constitution protected her liberty to choose to have an abortion, and that that right was paramount to the state’s right to regulate abortion.
Disregarding the Court’s established jurisprudence regarding the Due Process Clause of the 14th Amendment, the Supreme Court agreed with McCorvey.

In a 7-2 opinion written by Justice Harry Blackmun, he Supreme Court declared the right to an abortion is a fundamental liberty right that the state can only limit thru regulation if that regulation furthers a very strong state interest (a “compelling state interest”) and is narrowly-tailored to achieve that interest. That is, it cannot be overbroad. The Court then went on to conclude that a woman’s liberty right in controlling whether or not she is pregnant (hence, her right to choose to have an abortion) is stronger than the state’s interest in banning abortions outright.

Justice Blackmun wrote: “[Although] the Constitution does not explicitly mention any right of privacy … the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. … This right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the 9th Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. … We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”

Blackmun also addressed the very controversial issue of whether a fetus is a “person” within the meaning of that word in the 14th Amendment. He continued:

“The Constitution does not define ‘person’ in so many words. … The use of the word is such that it has application only postnatally.… This persuades us that the word ‘person,’ as used in the 14th Amendment, does not include the unborn. … In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. … In short, the unborn have never been recognized in the law as persons in the whole sense.”

Blackmun then summarized the “balancing of competing interests” at stake in the issue of pregnancy and abortion in what has become known as “the Trimester Test”:

“A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the 14th Amendment. a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

The opinion would go on to explain that the “health of the mother” does not necessarily only mean physical health. An abortion in the third trimester can be justified for any reason related to physical health, mental health, psychological well-being, age (being too young), familial (meaning the family wants the baby aborted), or even financial well-being. Even if the woman feels stressed from the pregnancy, she would be within her right to abort her later-term baby for “health” reasons. In other words, the opinion basically established the rule that a woman’s right to an abortion always outweighs the right to life for the unborn. Since 1973, Roe v. Wade has stood for the legal principle that a woman can have an abortion at any point in her pregnancy for any reason whatsoever, and neither the federal government nor any state can place any pre-conditions or restrictions on a woman’s right to that abortion. In other words, Roe assures women the right to an abortion on demand.

The infamous Roe decision (and its companion case, Doe v. Bolton) was the opinion of 7 out of 9 members of the court. Two justices dissented – Justice Byron White and Justice William Rehnquist. Justice White believed the Court created a new right not envisioned by the Constitution and both he and Justice Rehnquist believed the question of abortion was a state matter covered by the 10th Amendment.

Justice White wrote, in his dissenting opinion:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court, for the most part, sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. he Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.

Justice Rehnquist dissented with these views:

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of Mr. Justice Stewart in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature.  By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time.

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

And, as the 10th Amendment states so clearly, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The power to regulate for the safety, health, welfare, and morality of its people are the so-called “Police Powers” reserved by each state under the 10th Amendment. Because the power to regulate abortions was not prohibited to the States under the Constitution or by the 14th Amendment, the power continues to reside with the state. [We are, of course, referring to abortions that aren’t absolutely medically necessary on account of rape or incest or to preserve the life or physical health of the mother; we are referring to the types of abortions that Roe and Doe filed suit for, and the types of abortions that our sexually-active and adventurous progressive/liberal population, which are merely and essentially for convenience].

The Roe v. Wade decision has resulted in the deaths of over 60 million children since that infamous January date.

Liberals and progressives, fearing that a right-leaning Supreme Court may try to limit a woman’s right to an abortion, have taken to their state legislatures to protect that right. And in many cases, as we are witnessing, they are doing so that would probably even offend the Roe court. States like New York and Virginia and Rhode Island and the District of Columbia are pursuing “late-term” abortion bills that essentially remove any meaningful state interest in the life of the unborn such that a woman can terminate her pregnancy at any point, even killing her living unborn. New York has already passed its law – the mis-named Reproductive Health Act, and the others no doubt will soon follow.

As horrible, as horrific, as heinous, as unconscionable as these laws sound, they are perfectly compliant with the Roe v. Wade opinion. That is the sad reality.

These “late-term abortion” laws show just how broad, and how cruel and insidious the Roe decision was (is).

The truth is that 31 states have relaxed abortion laws. At one time North Carolina had a fairly relaxed abortion law, but over the years, the state has exercised its interest in the life of the unborn. Currently, it is seeking to prevent any abortion after 13 weeks, except when the woman’s attending physician is able to explain why an abortion is needed to prevent risk of death to the mother or other medical emergency. 23 states permit a later-term abortion “for the life and health of the mother,” which essentially means that a woman can terminate her pregnancy at any time for any reason, since the Supreme Court has interpreted “health” to mean any number of things – physical, emotional, psychological, financial, familial, because of stigma, and for age or for stress. These 23 states are: Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New York, Ohio, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming. Compare this relaxed standard to the more strict one, which permits a woman to have a later-term abortion only if is necessary “for life and physical health of the mother.” Sixteen (16) states have this more strict standard – Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Wyoming. There are 3 states that allow a full-term baby to be directly killed, but only if the pregnancy poses a direct risk to the mother’s life. Those states are Idaho, Michigan, and Rhode Island.

Now, take special note of these particular states: Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont. They don’t even require the pretense of a “health” reason for women to abort their full-term babies. In those 7 states, there are no bans at all on abortion at any stage. Those states are virtual killing fields. As Laurie Higgins wrote in the Illinois Family Institute: “It’s open season on babies who, through no fault of their own, have the misfortune of being conceived in the wrong womb.”

Just to drive home how barbaric a late-term abortion is – the kind of abortion just legalized in New York and the kind that Virginia expressly wanted to legalize, here is how a former abortionist describes the procedure:

“The baby is injected with a poison directly into his skull or torso. He then suffers a hideously painful death, which he will certainly feel because of his developed nervous system. The mother carries the corpse around in her womb for a day. The next day, there is an ultrasound to check if the baby is dead. If he isn’t….. if, by some miracle he survived and has been writhing and suffering in agony for the past 24 hours clinging onto life, then he will be injected again. The following day, the mother delivers her dead child. Sometimes she delivers him at the clinic, but if she can’t make it on time, the clinic is perfectly happy to recommend that she give birth into her toilet.”

What progressives and liberals don’t want the ordinary person to know is that all states allow late-term abortions that threaten a mother’s “life” – not just her “health.” There is no life-threatening condition that would ever necessitate the direct, intentional, active killing of a baby in the womb. There are relatively rare occasions in which continuing a pregnancy threatens a woman’s life, but ending a pregnancy does not require the direct, intentional, active killing of a baby. The key word here is “baby,” which means that the unborn is fully-developed or near to being fully-developed and capable of being cared for outside the womb by the mother, caregivers, or by special incubators and machines that can provide the care and protection that the mother’s womb can until term.

If there is a life-threatening condition that would necessitate the termination of a woman’s later-term, near full-term, or full-term pregnancy, the best option for doctors and for the woman is to deliver that baby. There are possible instances (such as cancer, a debilitating heart condition, toxemia, exceedingly high blood pressure, etc) when it may be necessary to remove the baby from its mother’s womb, but it is never necessary to kill him before removing him. There is no medical reason, and certainly no reasonable or moral one, to take that extra step of preemptively killing the child. Doctors can induce delivery or perform a C-section to save a woman’s life in a life-threatening or emergency situation without dismembering, crushing, burning, or chemically inducing cardiac arrest in a baby. In some induced deliveries or C-sections, babies will not survive, but that is wholly different from intentionally killing them.

The point is – the FACT is – that a delivery must happen either way. If a mother in the third trimester decides she doesn’t want or can’t have her baby inside her, she is going to have to deliver him one way or another. The only question is whether she will deliver a dead child or a living one. Giving a lethal injection to the child may be the more convenient route, but since when do we as a society put a greater value on convenience than on life itself. It certainly isn’t the necessary route.

Our options should always fall on the side of respecting and preserving life. We are the nation founded on the great truth that we are created and the moment we are created, we are endowed by our Creator with the inalienable rights of Life and Liberty.

God help us if we don’t change our thinking on this subject and don’t put an end to the killing fields.

Now, to be fair, most abortions are performed prior to 21 weeks of pregnancy. Agencies like the Center for Disease Control and abortion doctors themselves like to point out that the overwhelming percentage of abortions are performed up to 21 weeks. But, as I’ll make clear later, 21 weeks (which is very close to medical “viability”) does not mark the start of “life.” The fetus became a new living human being before that – being fully formed (just still very tiny) and exhibiting the functions of life (although some are still weak). Heck, a fetus has a heartbeat at around 6 weeks (although it isn’t heard well on an ultrasound until week 8). The point is that although most abortions are performed during the first half of pregnancy, a good portion of abortions are on the living; they are killing unborn babies.

The New York Reproductive Health Act has ignited a new debate on the abortion rights – specifically on the scope of the right and the fact that the Supreme Court never once considered the growing fetus/baby to be a “life,” let alone a unique life (not a clone of the mother).

You can see from the Roe decision, that by giving women an expansive, unfettered right to terminate her pregnancy (under the guise of “controlling her reproduction”), we have ushered in an era of evil. Since the abortion clinics have opened their doors, a parade of horribles has ensued. It appears that dissenting Justice Byron White summarized the majority’s opinion pretty well when he wrote: “At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure. And the Court, for the most part, sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus…” But he shouldn’t have been so kind to the majority. That last sentence should have read: “During the entire length of a pregnancy, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus.” That is exactly what the Roe decision stands for.

Because of this parade of horribles and the clear intent on the part of Democrats/progressives/liberals to of protecting this absolute right as against all those horribles, I have to believe that the Roe opinion can be re-visited for a more compassionate, moral, scientific outcome, and yes, constitutional decision.

For years, I have spoken and written about the Roe v. Wade decision (Supreme Court, January 22, 1973, announcing a fundamental right, or “liberty right” for women in aborting their unborn). I have held the opinion that the decision was perhaps incorrectly decided because its central premise was wrong. The Supreme Court, including conservative justice Antonin Scalia, made the underlying assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus in writing its Trimester Approach to when a woman has most control over her reproduction. The “Trimester Test” was the approach the Court used in summarizing the “balancing of competing interests” at stake in a woman’s pregnancy – the woman’s interest in controlling her reproduction and what happens in her uterus, the state’s interest in the life of the unborn, and the unborn’s right to the life it was intended to have. Sadly, the Court, in fleshing out the competing interests in its opinion, made it clear that any threat to a woman’s health in the third trimester (where typically the interests are greatest for the state and for the unborn) outweighs the interests of the other parties. And it explained that the threat need not be medical in nature. The unborn or the pregnancy itself need not pose any physical harm to her. Other types of harm justifying an abortion up until the moment of birth would include emotional, psychological, and even financial. The mere fact that the pregnancy poses stress on the woman would justify an abortion, according to the high Court. That is why Roe v. Wade stands for the general rule that a woman has a constitutional right to an abortion at any time during her pregnancy, for any reason. She has an unfettered right to abort her fetus or her unborn baby….. she has a right to an abortion on demand.

Anyway, going back to my concern with the Roe v Wade opinion. I believe the Court used the wrong approach in reaching its opinion. Again, it made the general assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus. Viability means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Today, medical experts believe a fetus is viable at around 24 weeks (which is about halfway in the second trimester). The proper assessment should have been when the fetus becomes a “life.” We know mere conception doesn’t equate to life; it merely sets in motion what would become fetal development resulting in a fully-formed baby that the mother welcomes into the world to continue its growth and development outside the womb. We also know that life does not equate to viability because viability just asks when the baby can likely survive outside the womb. Implicit in that definition is that there is already a “life.” It just looks to see how advanced in development that life is. The unborn cannot live without the protection and life-sustenance from its mother. Similarly, a newborn also cannot live on its own, without the protection and life-sustenance from its parents or other caregiver. A life scientifically comes into being when there is a heartbeat, when the baby has its organs, and when it is nearly completely differentiated so that really all that is needed is more growth and fine-tuning of its life support systems for the outside world. Under this definition, the unborn is a “life” much earlier than viability.

“Life” = “personhood,” and it should be that simple. What kind of society are we when we go out of our way, legally, emotionally, and psychologically to strip certain groups of their personhood and therefore their rights? The most brutal of killers gets our full attention regarding his rights and his place as “a fellow human being.” But the sweetest, most gentle, the purest, and the most helpless are the ones we minimized and disregard. The 8th Amendment is supposedly a testament to our compassion as a civilized society. If that is so, what is the Roe decision and what is New York’s “late-term abortion” law? I would submit that it is a testament to our savagery and to this the most selfish, self-obsessed, and immoral society. We simply can’t justify these polar extremes of our so-called “civility.”

The key is using “life” as the key determinative is that when there is a “life,” our laws provide protection, including observance of its fundamental rights. I look to the Declaration of Independence which professes:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness….

In other words, the minute an individual is created, he or she is endowed with inalienable rights, including the right to Life. Moreover, government is instituted for the primary purpose of secure those rights. It makes no difference whether that individual is 15 years old, 40 years old, 10 years old, 1 month old, or 20 weeks old. The minute it became a living being, it is understood to be entitled to the most essential of all inalienable (those attaching to our very humanity) rights. Technically, according to the words of the Declaration, the minute a new human being is created (joining of reproductive cells at conception; “conception” comes from “conceived” which means a new life, a new human being, has been conceived).

Therefore, a “person,” for purposes of our Rule of Law and our US Constitution (including the Bill of Rights and the 14th Amendment) includes the unborn. Again, maybe not exactly at conception and for several weeks after that, but certainly, and clearly, towards the end of the first trimester and the beginning of the second trimester. And as such, the unborn “life” has the same fundamental rights as the mother. Once the mother allows the pregnancy to reach the point where life has been created, then she holds no greater interest than the interest the unborn has in continuing its development. In other words, the “competing interests” explanation of a pregnancy shifts greatly. And unlike the Court’s opinion in Roe, where the unborn never was considered a legal “person” in order to take advantage of the rights and liberties enshrined in our Declaration, our Constitution, and our laws and therefore the woman held all the power to decide the unborn’s fate, the approach I believe should have been taken would recognize that the unborn is absolutely a “person” so that a woman does NOT have the unfettered right to abort her unborn, kill it, or otherwise dispose of it.

We can explain the failure of the Supreme Court in Roe using additional legal arguments as well.

The case involved a challenge to a Texas statute that criminalized abortion, which means that Norma McCorvey (aka Roe) filed suit claiming an infringement of an essential (liberty) right protected by the 14th Amendment. Challenges to state law claiming a violation of civil rights or liberty rights recognized by the Bill of Rights are brought under the Due Process Clause of 14th Amendment. Over the years since it was adopted, the Supreme Court has used the Due Process Clause of the 14th Amendment to “incorporate” the liberty rights of the US Bill of Rights as against the states; that is, if the federal government cannot infringe on our religious liberty than neither can the states, if the federal government cannot ban firearms, neither can the states, and so forth and so on.

The 14th Amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As the Court had noted, it first had to determine if the unborn are considered “persons” within the meaning of the 14th Amendment. It concluded that they were not.

If the Court would have exercised proper interpretation authority and followed its own established 14th Amendment jurisprudence (precedent), it would have taken an originalist approach to the analysis, and the outcome would have been quite different (although not ultimately providing for the right of women to have an abortion; the decision would have been left to the states themselves).

Under an “originalist” approach, the Court would have had to determine what the word “persons” was understood to mean when the 14th Amendment was written and ratified. “Originalism” is often equated with “Textualism” (where judges look at the meaning of the words and intent at the time they were written) A honest analysis would have looked not only at the definition of the term “persons” around the time of 1868, but also at society’s view of abortion at that time. In fact, for a claimed right to be covered by the 14th Amendment and hence free from government/state regulation, that right would have had to have been considered an essential liberty right at the time the Amendment was adopted. In other words, the Court should have asked two questions: “What did the term ‘persons’ mean back in 1868?” And, “Was abortion considered a fundamental liberty right back in 1868?” [That is, the Court should have asked: Was the asserted right to an abortion “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)].

If the asserted right was not recognized at the time the Fourteenth Amendment was adopted, that means society was not ready to recognize it as such. To add a new right, one that is clearly defined only by the relaxed moral and sexual societal standards in this progressive/liberal age, the Constitution would need to be amended. And that would require the amendment process outlined in Article V.  We update our Constitution, not by the individual wisdom or opinion of a handful of judges but by the collective will of the people.

Josh Craddick, a Harvard Law student recently had a Law Review article published in which he looked into the definition of “persons.” In his article (“Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”), he noted that layman’s dictionaries at the time of the adoption of the 14th Amendment (adopted on July 28, 1868) treated the concepts of humanity and personhood interchangeably. He also consulted William Blackstone’s Commentaries on the Laws of England, a treatise that had profound influence on legal thinking, was used in American law schools, was relied on by the Supreme Court, and continues to be cited even today in Supreme Court decisions. It is cited at least 10-12 times each year. Blackstone expressly recognized that personhood and the right to life existed before birth. He set forth a simple and clear legal standard: “Where life can be shown to exist, legal personhood exists” (emphasis added). A look back through history shows that there were no laws to specifically protect the unborn prior to “quickening” (when the mother feels the baby begin to kick and move around) and prior to birth, and that makes sense in light of the generally-accepted definition of “personhood.” A pregnant woman was carrying a “life,” and hence she was carrying a new person.

With respect to the second question (“Was abortion considered an essential/fundamental liberty right back in 1868?”), Craddick researched the societal view of abortion back in the day. In his article, he showed that many of the states that voted to ratify the 14th Amendment had laws criminalizing abortion. What does that mean? It seems to confirm that at the time, Americans, state lawmakers, and government officials understood personhood to include the unborn, just as Blackstone defined it. It shows that society in 1868 viewed personhood and life in much the same way that pro-lifers understand.

Craddick wrote:

When the Amendment was adopted in 1868, the states widely recognized children in utero as persons. Nearly every state had criminal laws proscribing abortion, and most of these statutes were classified among ‘offenses against the person.’ There can be no doubt whatsoever that the word ‘person’ referred to the fetus.” Twenty‐three states and six territories referred to the fetus as a ‘child’ in their statutes proscribing abortion. At least twenty‐eight jurisdictions labeled abortion as an ‘offense against the person’ or an equivalent criminal classification. Nine of the ratifying states explicitly valued the lives of the preborn and their pregnant mothers equally by providing the same range of punishment for killing either during the commission of an abortion. The only plausible explanation for this phenomenon is that the legislatures considered the mother and child to be equal in their personhood. Furthermore, ten states (nine of which had ratified the Fourteenth Amendment) considered abortion to be either manslaughter, assault with intent to murder, or murder.

The adoption of strict anti‐abortion measures in the mid‐nineteenth century was the natural development of a long common‐law history proscribing abortion. Beginning in the mid‐thirteenth century, the common law codified abortion as homicide as soon as the child came to life (animation) and appeared recognizably human (formation), which occurred approximately 40 days after fertilization. Lord Coke later cited the “formed and animated standard,” rearticulating it as “quick with childe.”

Craddick went on to point out that even by the mid-nineteenth century, courts and states alike, were increasingly rejecting the “quickening” standard as scientifically obsolete and replacing it with fertilization. Imagine that !!

Sadly, we all know the reasons the justices of the Supreme Court made that colossally-erroneous assumption that “personhood” means “someone who walks around, who has an independent life outside a woman’s womb.” First, the Court knew that society couldn’t be responsible for all the unwanted births; the burden they would impose on society would break our system of welfare and social services. Second, the case moved up through the court system at a time when the Women’s Rights Movement was fighting for equality in the workplace and in the home, with equality resting squarely on her ability to determine when, or if, she would reproduce. A woman could not control her career, her future, or even her burden at home if she were to be held hostage by her uterus and her God-given ability to bring forth new life. The Court, obsessed with social justice and equality, saw the case as one to give the Women’s Rights Movement what it wanted – the ability to finally be equal in the workforce.

Germany wanted a racially-pure German race. It felt it had that right as a sovereign country. After all, the Nazi movement was about nationalism. Germany would never be treated and punished, plundered and broken up like it was after the defeat of the Triple Alliance nations in World War I. For Germany to have the ability to engineer a pure German race (a “master-race”), it needed to accept the genocide of the undesirables.

We have to be careful what ambition causes us to sacrifice or condone.

Abortion has become all-too-often synonymous with “convenience.” It’s a “choice” – a choice to be pregnant or not to be pregnant. Again, most times, a woman or girl has an abortion very early on, before there is life inside her. But many times it’s not a “choice”; it’s a baby.

I think a case can be made that the right needs limitations, and if that can be achieved, then women can be both pro-life and pro-choice, if that makes any sense. If we look at a “Balancing of Rights” approach rather than a “Balancing of Interests” approach – that is, if we balance the rights of the woman to control her reproduction with the big daddy of them all, the right to life, of the unborn child, rather than balance the rights of the woman to terminate her pregnancy with the interest of the state in protecting the pregnancy – then we will come to a point in the pregnancy when the developing fetus becomes a “life.” At that point, society can then legally deny abortions (except for situations such as rape, incest, or risk to the woman’s life). A woman will enjoy a period of time to decide whether she wants to continue the pregnancy (hence, pro-choice), but if she waits too long, then she will not be able to abort the baby and will not be able to take a life (hence, pro-life).

We need to have conversations. We need to find common ground between pro-life supporters and pro-choice advocates. We can’t continue to offend so greatly our national conscience. Roe v. Wade needs to be re-addressed. A woman may very well be entitled to a right to abort her pregnancy, but at least that issue needs to decided by a court that is willing to do a correct and honest analysis – recognizing that the unborn becomes a life well before it is born and therefore it has the same rights that every other human being has. A woman may very well have the right to have an abortion if she chooses, but that right can not be so broad or expansive as to include the taking of another life.

We need to get this issue back into court and in front of reasonable-minded justices.

We need to stop the killing fields.

 

- 0000000
References:
Roe v. Wade, 410 U,S. 113 (1973), Majority Opinion, written by Justice Harry Blackmun, Cornell Law Library – https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZO

Roe v. Wade, 410 U,S. 113 (1973), Dissenting Opinion, written by Justice William Rehnquist, Cornell Law Library – https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZD

Roe v. Wade, Dissenting Opinion, by Justice Byron White – https://en.wikisource.org/wiki/Roe_v._Wade/Dissent_White and
https://www.scribd.com/document/217330653/Dissent-White

Laurie Higgins, “31 States Permit Full-Term Abortions,” Illinois Family Institute, January 28, 2019. Referenced at: https://illinoisfamily.org/life/31-states-permit-full-term-babies-to-be-killed-in-the-womb-for-virtually-any-or-no-reason/

Joshua J. Craddick, Joshua J. Craddock, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?,” Harvard Journal of Law and Public Policy, Vol. 40, No. 2 (2017). Referenced at: file:///C:/Users/diane/Downloads/SSRN-id2970761.pdf [Abstract: What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?
The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the meaning of the Fourteenth Amendment.]

Calvin Freiburger, “Article in Harvard Law Journal Concludes: The Preborn Child is a Constitutional Person,” Live Action, June 1, 2017. Referenced at: https://www.liveaction.org/news/landmark-harvard-essay-preborn-child-constitutional-person/

VIDEO: Dr. Anthony Levatino, former abortion doctor, explains that abortion is never medically necessary to save a woman’s life during pregnancy – https://www.youtube.com/watch?time_continue=4&v=ysl1tRnk-ig [Let me illustrate with a real-life case that I managed while at the Albany Medical Center. A patient arrived one night at 28 weeks gestation with severe pre-eclampsia or toxemia. Her blood pressure on admission was 220/160. A normal blood pressure is approximately 120/80. This patient’s pregnancy was a threat to her life and the life of her unborn child. She could very well be minutes or hours away from a major stroke. This case was managed successfully by rapidly stabilizing the patient’s blood pressure and “terminating” her pregnancy by Cesarean section. She and her baby did well. This is a typical case in the world of high-risk obstetrics. In most such cases, any attempt to perform an abortion “to save the mother’s life” would entail undue and dangerous delay in providing appropriate, truly life-saving care. During my time at Albany Medical Center I managed hundreds of such cases by “terminating” pregnancies to save mother’s lives. In all those cases, the number of unborn children that I had to deliberately kill was zero.]

CHART: State-by-State Later Term Abortion Policies – https://www.kff.org/womens-health-policy/state-indicator/later-term-abortions/?currentTimeframe=0&selectedDistributions=state-prohibits-some-abortions-after-a-certain-point-in-pregnancy–threshold-for-later-term-abortions–later-term-abortion-permitted-when-pregnancy-threatens-womans&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D

State Facts About Abortion: North Carolina (Fact Sheet, May 2018), Guttmacher Institute – https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-north-Carolina

Brandon Moseley, “Federal Court Strikes Down an Alabama Abortion Law,” Alabama Reporter, August 23, 2018. Referenced at: https://www.alreporter.com/2018/08/23/federal-court-strikes-down-an-alabama-abortion-law/

GHI Breborowicz,” Early Pregnancy: Limits of Fetal Viability and Its Enhancement,” NCBI (National Center for Biotechnology Information), January 5, 2011; pp. 49-50. Referenced at: https://www.ncbi.nlm.nih.gov/pubmed/11753511 [“Viability” of a fetus, or “fetal viability,” means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. Consequently, there is, at the present time, no worldwide, uniform gestational age that defines viability. Viability is not an intrinsic property of the fetus because viability should be understood in terms of both biological and technological factors. It is only in virtue of both factors that a viable fetus can exist ex utero and thus later achieve independent moral status. Moreover, these two factors do not exist as a function of the autonomy of the pregnant woman. When a fetus is viable, that is, when it is of sufficient maturity so that it can survive into the neonatal period and later achieve independent human status given the availability of the requisite technological support, and when it is presented to the physician, the fetus is a patient. In the United States viability presently occurs at approximately 24 weeks of gestational age (Chervenak, L.B. McCullough; Textbook of Perinatal Medicine, 1998)].

“Can a Fetus Feel Pain?,” NCBI (National Center for Biotechnology Information), April 15, 2006; 332 (7546): 909–912. Referenced at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1440624/

“How Your Fetus Grows During Pregnancy,” American College of Obstetricians & Gynecologists (ACOG), (April 2018). Referenced at: https://www.acog.org/Patients/FAQs/How-Your-Fetus-Grows-During-Pregnancy?IsMobileSet=false

Traci DeVette Griggs, “New York’s War on Children Hits a New Low on Anniversary of Roe v. Wade,” Family Policy Facts (NC Family Policy Council), January 23, 2019. Referenced at: https://www.ncfamily.org/new-yorks-war-on-children-hits-a-new-low-on-anniversary-of-roe-v-wade/

Roe v. Wade, Texas Bar – https://www.texasbar.com/civics/High%20School%20cases/roe-v-wade.html

Roe v. Wade (1973), as explained by Clarke Forsythe, Senior Counsel for Americans United for Life (AUL) and Melissa Murray, Berkeley Law School professor. [Clarke Forsythe is also the author of the book Abuse of Discretion: The Inside Story of Roe V. Wade, and Ms. Melissa Murray in addition to being a law school professor, also as the Faculty Director for the Center for Reproductive Rights and Justice]. Referenced at: https://www.khanacademy.org/humanities/ap-us-government-and-politics/civil-liberties-and-civil-rights/amendments-due-process-and-the-right-to-privacy/v/roe-v-wade [See Appendix below for a transcript of this video]
APPENDIX: (Transcript of the Khan Academy Video, as modified a bit by Diane Rufino)

Question: “Mr. Forsythe, could you set the stage for us a little bit. What was going on during this time period?”

Mr. Clarke: “Well, there were efforts in the 1960s to repeal abortion laws in the individual states and when abortion activists were dissatisfied with those efforts, they decided to go into the courts. And around 1969, they took some cases into the courts and ultimately, there were 20 or more cases challenging state laws in the courts between 1969 and 1973. Roe vs. Wade was the case from Texas.”

Ms. Murray: “Roe was litigated in the early 1970s. It was a period of enormous change in the United States. We were beginning to see beginnings of the women’s rights movements, the beginning of the gay rights movement, and of course, the civil rights movement of the 1960s was moving in a lot of different directions. At the time, the question of abortion was very much on the minds of lots of different state legislatures because there had been moves to liberalize much of the criminal law that dealt with matters of sex and sexuality, including abortion. At the time, four states, New York, Alaska, Hawaii, and I believe Washington, had actually taken steps to repeal their laws criminalizing abortion. And about 13 other states had taken efforts to liberalize their laws criminalizing abortions, but in number of other states, around, at least 20 or more, there remained on the books, laws that absolutely criminalized abortion, except in situations where it would be necessary to preserve the woman’s health or life, or in cases of rape, incest, or fetal anomaly.”

Mr. Clarke: “Abortion rights attorneys sought plaintiffs who could challenge the Texas law and the Georgia law [ie, They were looking for a “test case”]. There were two attorneys from Texas who found Norma McCorvey, who they gave the pseudonym of Jane Roe, for purposes of protecting her privacy.”

Ms. Murray: “And so Norma McCorvey brought this case. She was an unmarried 22 year old woman living in Dallas County, Texas, who found herself pregnant for the third time. She gave birth to her first child, a daughter, and ultimately signed over custody to her mother to raise her since her life wasn’t very stable (she was moving around a lot). She gave her second child up for adoption. When she found herself pregnant for a third time, she wasn’t willing to do either of these things again and so she simply wanted to safely and legally terminate her pregnancy. But this was impossible under the Texas law. Texas had, since the 19th century criminalized abortion in all cases except those instances where it was necessary for the health and safety of the mother. And so she then was faced with the question of what was she going to do. And the only thing she could think to do then (that is, what her lawyers thought, and sought, to do), was to challenge the law as being unconstitutional. So she was put in contact with Sarah Weddington and Linda Coffee, two young women who had recently graduated from law school. Sarah Weddington was only 26 years old at the time she helped Norma McCorvey bring this case. They sued the State of Texas to challenge the constitutionality of Texas’ criminal abortion ban.”

Mr. Clarke: “But as the history shows, there was no trial, there was no evidence, there were no expert witnesses. Jane Roe never testified. As we all know, she never got an abortion. She gave birth and placed her child for adoption.” [In the years after the decision, Norma had a complete change of heart and became a strong opponent of abortion].

Question: “Okay, so Roe was Norma McCorvey. Who was Wade?”

Mr. Clarke: “Henry Wade was the District Attorney for Dallas, Texas, where the case was filed in Federal District Court.”

Questions: “So the case eventually made it to the Supreme Court. How did the Court rule?”

Mr. Clarke: “The Justices declared the Texas and Georgia laws unconstitutional and then rewrote a national law, a national abortion law, in which they said that the states could not regulate or limit abortion in the first trimester. They could regulate more in the second trimester, the second three months of pregnancy, to protect maternal health and they could regulate in the last three months of pregnancy, the last trimester, to protect maternal health or fetal life. The attorneys for the plaintiffs claimed that abortion fell within the right to privacy, even though privacy is not in the text of the Constitution, they said it was derived, or based in the language of the 14th Amendment of the Constitution even though the 14th Amendment doesn’t say anything about abortion, or the unborn child; the 14th Amendment just uses the term liberty. Ultimately the Court said that the right to abortion is part of the right to privacy based on the 14th Amendment.”

Question: “That’s very interesting. I’ve learned through many of these interviews, that this right to privacy is something that is never actually explicitly stated throughout the Bill of Rights, but there’s a penumbra of privacy that you see in a few ways. What was the Court’s reasoning that the right to an abortion could fall under this zone of privacy?”

Mr. Clarke: “If you read the Roe opinion – specifically, on page 152 of the opinion – Justice Blackmun starts out by citing a string of prior Supreme Court cases, beginning about 1910, which elude to a right of privacy which undergirds other rights in the Bill of Rights. Blackmun argued that these cases lead to a general right of privacy, and that this right of privacy is broad enough to encompass a woman’s right to an abortion. But then four pages later, on page 156, Blackmun turns around and says that abortion is inherently different from all those other cases that make up the right of privacy (including the right to use contraception and contraceptive devices to control fertility and reproduction, Griswold v. Connecticut (1965) because it involves the taking of a life.”

Ms. Murray: “The right of privacy doesn’t actually come from Roe vs. Wade. It comes from a case decided about eight years earlier, in 1965, called Griswold vs. Connecticut. The issue in the Griswold case was whether a Connecticut state statute that made it a crime to use contraception or even to counsel patients about contraception violated the Constitution. Planned Parenthood League of Connecticut opened up a birth control clinic in New Haven, Connecticut. They were promptly arrested and the clinic was closed. They challenged the statute, arguing that the right to use contraception was a fundamental individual right. Furthermore, they argued that since individuals have the right to use contraception, doctors also have the right to advise patients about such. Patients are entitled to be informed about their medical choices. The Supreme Court, in an opinion authored by Justice William Douglas, agreed with the clinic. In the Griswold case, the Court articulated for the first time this right of privacy. The opinion explained that while the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First (the right to conscience created by the right to worship freely), the Third (the right to be free in one’s home from the quartering of troops), the Fourth (the right to be safe and secure in one’s own person, one’s home, and with one’s effects from unreasonable government searches and seizures), and the Ninth Amendments create the right to privacy which encompasses marital relations. Douglas, writing for the majority, indicated that this right had actually ‘been percolating in the Court’s decisions for some time.’”

Question: “Did any of the Justices dissent in the Roe decision and if so, why?”

Mr. Clarke: “Well there were two dissents, one by Justice White and the other by Justice Rehnquist. Justice White said that the Court was engaging in raw judicial power (ie, judicial activism) and that the Justices did not have the right or the authority, on account of the 10th Amendment, to strike down the abortion laws of the individual states: it could only rely on a doctrine called ‘substantive due process.’ The justices were addressing the assertion that a woman’s right to an abortion is a fundamental right and hence, under the Due Process Clause of the 14th Amendment, it cannot be violated or burdened. The Due Process Clause says that no person can be deprived of “life, liberty, or property, without due process of law.” However, there are clear limits as to which individual “liberty” rights are imposed on a state (that is, those which it is obligated to respect and refrain from regulating). In in 1934, the Supreme Court held that due process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In other words, as explained further by the Court, the right must have been recognized as a liberty right (essential to our sense of ordered liberty) at the time of the adoption of the 14th Amendment to be recognized by its Due Process Clause. Justice Rehnquist said that there is clear historical evidence that many states passed abortion limits and prohibitions precisely at the time of the framing of the 14th Amendment in the 1860s and leading up to 1868, which is when the Amendment was added to the Constitution. In other words, this history was evidentiary history. As such, this history of state limits and prohibitions on abortion actually served to contradict the petitioner’s (the birth control clinic’s) assertion that the 14th Amendment was intended to include a right to abortion.”

Question: “It appears that Roe is not the last word on abortion in the United States. There have been several later cases that were important to this as well, like Planned Parenthood vs. Casey, or Whole Woman’s Health vs. Hellerstedt. Can you talk a little bit about how those cases have altered the scope of the right to abortion?

Ms. Murray: “As soon as Roe was decided in 1973, there was an effort to sort of roll it back and hem it in a little bit. Frank Church, who’s a Senator from Idaho, announced ‘The Church Amendment,’ which basically says that physicians don’t have to perform abortions if doing so would conflict with their conscience or conscientious beliefs. So we see one way to limit the reach of this right – by limiting the number of providers who are available to offer abortions.”

Mr. Clarke: “In fact, the Court has kind of cut back on Roe vs. Wade in four cases over the years. But then in 2016, it appeared to return to its original position that the state nor federal government would tolerate any impermissible burden to a woman’s right to an abortion:
Harris vs. McRae [A 1980 case in which the Court acknowledged that federal funding could be limited for abortions. The Court held that states participating in the Medicaid program (established under Title XIX of the Social Security Act) were not obligated to fund medically necessary abortions. Title XIX of the Social Security Act was enacted to provide federal financial assistance to states that chose to reimburse certain costs of medical treatment for needy persons. Beginning in 1976, Congress passed a number of versions of what was known as the “Hyde Amendment” which severely limited the use of federal funds to reimburse the cost of abortions under the Medicaid program. Cora McRae, a pregnant Medicaid recipient, challenged the Hyde Amendment, filing suit against Patricia R. Harris, the US Secretary of Health and Human Services. The Supreme Court found that a woman’s freedom of choice did not carry with it “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices”].
Planned Parenthood vs. Casey [A 1992 case in which the Supreme Court upheld various restrictions to an immediate abortion (an “abortion on demand”). The Pennsylvania state legislature amended its abortion control law in 1988 and 1989, to required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. In a bitter, 5-to-4 decision, the Supreme Court again re-affirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the Court imposed an articulable standard to determine the validity of laws restricting abortions. The standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden” on a woman’s right to an abortion, which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement]. Other similar cases involving restrictions on immediate access to an abortion reached the same conclusion.
Whole Woman’s Health versus Hellerstedt [In 2016, the Supreme Court flipped. In this case, the Supreme Court was asked to rule on the constitutionality of a Texas law that put limits on physicians performing abortions and on the abortion facilities themselves. A group of abortion providers sued the state. In a 5-3 opinion authored by Justice Stephen Breyer (remember, Justice Scalia had passed in February or 2016 and so it was only an 8-member Court at the time) the Supreme Court noted that the provisions that were challenged did not actually offer the medical benefits that they claimed to offer. Hence, as a matter of constitutionality, they were insufficient to justify the burdens on access that each of those provisions imposed.

Question: “What do you see as the future of Roe vs. Wade?”

Mr. Clarke: “Well, the Supreme Court has failed as the national abortion control board. It cannot monitor abortion. It can’t intervene, it can’t regulate or legislate itself, it can’t act as public health administrators, and it can’t investigate. And so I believe it’s absolutely certain that the Court, sooner or later, will have to overturn the Roe decision because of this failure and return the matter to the states.”

Ms. Murray: “Remember, when they were talking about repealing or reforming those abortion laws we referred to earlier, from the 1960s and 70s, it was connected in a big way to the growing women’s rights social movement. Perhaps the most critical question of that movement asked ‘What will be the role of women going forth in a modern society.’ When the question of contraception came before the Court in 1965, one of the questions was whether women should be allowed to control her reproduction and to choose when to have children…. Should she be allowed to control the timing of births in order to accommodate her career. It’s the same issue that came up in the abortion debate. If women were to have equal opportunities in the workforce, they would need to determine when they would become mothers and to determine the timing of their children. They would also need the flexibility to determine if they even wanted a child in the first place.”

Question: “So we’ve learned that the decision to legalize abortion in Roe vs. Wade was based on the right of privacy, which the Supreme Court has inferred from the Due Process Clause of the 14th Amendment. Since the Roe decision, a number of other cases have set limits on abortion and abortion clinics. Clarke Forsythe argues that the Supreme Court has failed in regulating abortion and that the issue should be returned to the states. Melissa Murray, by contrast, suggests that the decision in Roe is crucial to giving women the freedom to join the workforce and make decisions about when to have children.

To learn more about his case, visit the National Constitution Center’s Interactive Constitution and Khan Academy’s resources on US Government and Politics.

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Why Can’t Women be Both Pro-Choice AND Pro-Life? It’s Possible With Common Sense Limitations on Abortion

ABORTION - Right to Life

by Diane Rufino, January 30, 2019

On January 22, 1973, the Supreme Court handed down one of the most controversial opinions in its history. It issued its opinion regarding the constitutionality of state laws banning and even criminalizing abortion. In striking down those laws, it identified a new fundamental right – the right of a woman to have an abortion, at essentially any time during her pregnancy and for whatever reason. It decided the case of Roe v. Wade.

States are allowed to regulate a wide variety of actions in the interest of protecting the people within its borders. These are the laws that are pursuant to its vast “police powers” – the power to regulate for the health, safety, welfare,, and morality of its citizens. These are the powers reserved to the states under the 10th Amendment, and the powers intended to remain with each state. Aside from these police powers (the 10th Amendment), the Constitution puts certain limits the states’ authority to regulate. One of those limits is when there is an individual liberty right at stake. (And not just any “liberty right” at that; the right at stake must have been a recognized liberty right at the time the 14th Amendment was adopted, which was 1868.  For any other asserted liberty right, the Constitution would need to be amended per Article V’s amendment process. See the Appendix at the end of the article).  In Roe v. Wade, Norma McCorvey (aka, petitioner Roe) argued that the Constitution protected her liberty to choose to have an abortion, and that that right was paramount to the state’s right to regulate abortion. Disregarding the Court’s established jurisprudence regarding the Due Process Clause of the 14th Amendment, the Supreme Court agreed with McCorvey.

In a 7-2 opinion written by Justice Harry Blackmun, he Supreme Court declared the right to an abortion is a fundamental liberty right that the state can only limit thru regulation if that regulation furthers a very strong state interest (a “compelling state interest”) and is narrowly-tailored to achieve that interest. That is, it cannot be overbroad.  The Court then went on to conclude that a woman’s liberty right in controlling whether or not she is pregnant (hence, her right to choose to have an abortion) is stronger than the state’s interest in banning abortions outright.

Justice Blackmun wrote: “[Although] the Constitution does not explicitly mention any right of privacy … the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. … This right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the 9th Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. … We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”

Blackmun also addressed the very controversial issue of whether a fetus is a “person” within the meaning of that word in the 14th Amendment.  He continued:

“The Constitution does not define ‘person’ in so many words. … The use of the word is such that it has application only postnatally.… This persuades us that the word ‘person,’ as used in the 14th Amendment, does not include the unborn. … In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. … In short, the unborn have never been recognized in the law as persons in the whole sense.”

Blackmun then summarized the “balancing of competing interests” at stake in the issue of pregnancy and abortion in what has become known as “the Trimester Test”:

“A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the 14th Amendment. a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

The opinion would go on to explain that the “health of the mother” does not necessarily only mean physical health. An abortion in the third trimester can be justified for any reason related to physical health, mental health, psychological well-being, age (being too young), familial (meaning the family wants the baby aborted), or even financial well-being. Even if the woman feels stressed from the pregnancy, she would be within her right to abort her later-term baby for “health” reasons.  In other words, the opinion basically established the rule that a woman’s right to an abortion always outweighs the right to life for the unborn. Since 1973, Roe v. Wade has stood for the legal principle that a woman can have an abortion at any point in her pregnancy for any reason whatsoever, and neither the federal government nor any state can place any pre-conditions or restrictions on a woman’s right to that abortion. In other words, Roe assures women the right to an abortion on demand.

The infamous Roe decision (and its companion case, Doe v. Bolton) was the opinion of 7 out of 9 members of the court. Two justices dissented – Justice Byron White and Justice William Rehnquist. Justice White believed the Court created a new right not envisioned by the Constitution and both he and Justice Rehnquist believed the question of abortion was a state matter covered by the 10th Amendment.

Justice White wrote, in his dissenting opinion:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court, for the most part, sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. he Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women [410 U.S. 223] whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.

Justice Rehnquist dissented with these views:

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of Mr. Justice Stewart in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time.”

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

And, as the 10th Amendment states so clearly, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The power to regulate for the safety, health, welfare, and morality of its people are the so-called “Police Powers” reserved by each state under the 10th Amendment. Because the power to regulate abortions was not prohibited to the States under the Constitution or by the 14th Amendment, the power continues to reside with the state. [We are, of course, referring to abortions that aren’t absolutely medically necessary on account of rape or incest or to preserve the life or physical health of the mother; we are referring to the types of abortions that Roe and Doe filed suit for, and the types of abortions that our sexually-active and adventurous progressive/liberal population, which are merely and essentially for convenience].

The Roe v. Wade decision has resulted in the deaths of over 60 million children since that infamous January 1973 date.

Fast forward to 2019.  On the 46th anniversary of Roe v. Wade, the New York state legislature passed the Reproductive Health Act, a “late-term abortion” bill that now allows women to freely have abortions in the state at practically any time up until the birth of the child and for almost any reason. It essentially minimizes any state interest in the well-being or life of the unborn child. The New York State Senate passed the Reproductive Health Act late in the evening on January 22, and Governor Andrew Cuomo quickly signed it into law.

Even before this new law was enacted, over a third of all unborn babies in New York City were aborted. The Center for Disease Control and Prevention (CDC) reported that in 2015, there were 544 abortions for every 1,000 live births in NYC, with African-Americans predominantly being the ones aborting their babies.

The new “late-term abortion” law in NY states that abortions are now legal when:

(i)  “The patient is within twenty-four weeks from the commencement of pregnancy, OR;

(ii)  There is absence of fetal viability, OR;

(iii)  The abortion is necessary to protect the patient’s life or health.”

While the law appears to put conditions on a woman’s right to abort her unborn baby after 24 weeks (after “viability”), those conditions are essentially meaningless.  We read the phrase “to protect the patient’s life or health” to understand that an abortion would be permitted post 24 weeks if the woman is in danger of dying or suffering some permanent damage. But we would be wrong. According to the Supreme Court’s decision in Doe v. Bolton, the companion case to Roe v. Wade, “health” includes “all factors—physical, emotional, psychological, familial, financial situation, and the woman’s age—relevant to the wellbeing of the patient.”  The Roe decision mentioned stress on the mother as a health concern justifying an abortion in the third trimester. So, the law essentially removes any restrictions on a woman having an abortion up until the baby’s birth.

This law shows just how broad, and how cruel and insidious the Roe decision was. It wasn’t until Democrats finally achieved a solid majority in both chambers of the New York Legislature that they finally passed this bill. For the past 12 years, Democrats have tried to get it passed by Republicans were able to block it each time.

The Virginia state legislature defeated a similar bill on Tuesday, January 29. Virginia Rep. Kathy Tran introduced a bill (HB 2491) which would have allowed for abortion up until birth in cases in which the health or life of the mother is at risk. (Refer to the video referenced at the end of this article, discussion with a former abortion doctor –  https://www.youtube.com/watch?time_continue=4&v=ysl1tRnk-ig ). The Repeal Act would remove all existing abortion restrictions in the state of Virginia, and as Tran has admitted, would include allowing an abortion even when a woman is in active labor about to deliver her child.  Truly unconscionable.

ABORTION ARTICLE - Twitter Comment (Dr. Omar Hamada)

Virginia may follow the New York plan, which was to continue to propose such legislation until Democrats take control of both houses of its legislature. But the truth is that Virginia already has a fairly relaxed abortion law and a fairly relaxed abortion policy, pretty much following the guidance the Supreme Court has provided in Roe and Doe (again the companion case) and in its subsequent opinions, such as Casey.

My guess is that liberal states like New York, which have large populations of women who can’t, or refuse to, exercise proper control over their bodies or in their sex lives, want to make sure abortion rights are alive and well (and enlarged and unfettered) within their borders just in case an evil conservative Supreme Court (perhaps even a “ruthless court) dares to try to put reasonable limits on that right in any way. I think we are seeing such laws being passed which expressly make it clear that a woman has a right, up until the point of delivery, to terminate and abort the life growing inside her. They want to make sure that Roe is viewed as standing for the most expansive view of the right to an abortion. And if the Supreme Court should just happen to follow the legal position of dissenting justices Byron White and William Rehnquist, which was that the states have the right, under the 10th Amendment, to legislate abortion and the federal government had no point taking that right away from them, the states themselves will already be ready with strong abortion-protection laws for our women’s rights mentality population.

Pro-baby-killing advocates are preparing for the day Roe v. Wade is overturned. (which may happen but the right of a woman to have an abortion will never be taken away; it will just be protected on a state-by-state basis).

The truth is that 31 states have relaxed abortion laws, with North Carolina being one of them.  24 states, including North Carolina, permit a later-term abortion “for the life and health of the mother,” which essentially means that a woman can terminate her pregnancy at any time for any reason, since the Supreme Court has interpreted “health” to mean any number of things – physical, emotional, psychological, financial, familial, because of stigma, and for age or for stress. These 24 states are:  Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming. Compare this relaxed standard to the more strict one, which permits a woman to have a later-term abortion only if is necessary “for life and physical health of the mother.”  Sixteen (16) states have this more strict standard – Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Wyoming.  There are 3 states that allow a full-term baby to be directly killed, but only if the pregnancy poses a direct risk to the mother’s life. Those states are Idaho, Michigan, and Rhode Island.

Now, take special note of these particular states: Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont. They don’t even require the pretense of a “health” reason for women to abort their full-term babies. In those 7 states, there are no bans at all on abortion at any stage. Those states are virtual killing fields. As Laurie Higgins wrote in the Illinois Family Institute: “It’s open season on babies who, through no fault of their own, have the misfortune of being conceived in the wrong womb.”

Just to drive home how barbaric a late-term abortion is – the kind of abortion just legalized in New York and the kind that Virginia expressly wanted to legalize, here is how a former abortionist describes the procedure:

“The baby is injected with a poison directly into his skull or torso. He then suffers a hideously painful death, which he will certainly feel because of his developed nervous system. The mother carries the corpse around in her womb for a day. The next day, there is an ultrasound to check if the baby is dead. If he isn’t…..  if, by some miracle he survived and has been writhing and suffering in agony for the past 24 hours clinging onto life, then he will be injected again. The following day, the mother delivers her dead child. Sometimes she delivers him at the clinic, but if she can’t make it on time, the clinic is perfectly happy to recommend that she give birth into her toilet.”

What progressives and liberals don’t want the ordinary person to know is that all states allow late-term abortions that threaten a mother’s “life” – not just her “health.”  There is no life-threatening condition that would ever necessitate the direct, intentional, active killing of a baby in the womb. There are relatively rare occasions in which continuing a pregnancy threatens a woman’s life, but ending a pregnancy does not require the direct, intentional, active killing of a baby. The key word here is “baby,” which means that the unborn is fully-developed or near to being fully-developed and capable of being cared for outside the womb by the mother, caregivers, or by special incubators and machines that can provide the care and protection that the mother’s womb can until term.

If there is a life-threatening condition that would necessitate the termination of a woman’s later-term, near full-term, or full-term pregnancy, the best option for doctors and for the woman is to deliver that baby. There are possible instances (such as cancer, a debilitating heart condition, toxemia, exceedingly high blood pressure, etc)  when it may be necessary to remove the baby from its mother’s womb, but it is never necessary to kill him before removing him. There is no medical reason, and certainly no reasonable or moral one, to take that extra step of preemptively killing the child. Doctors can induce delivery or perform a C-section to save a woman’s life in a life-threatening or emergency situation without dismembering, crushing, burning, or chemically inducing cardiac arrest in a baby. In some induced deliveries or C-sections, babies will not survive, but that is wholly different from intentionally killing them.

The point is – the FACT is –  that a delivery must happen either way. If a mother in the third trimester decides she doesn’t want or can’t have her baby inside her, she is going to have to deliver him one way or another. The only question is whether she will deliver a dead child or a living one. Giving a lethal injection to the child may be the more convenient route, but since when do we as a society put a greater value on convenience than on life itself.  It certainly isn’t the necessary route.

ABORTION ARTICLE - Twitter Comment (Matt Walsh(

Our options should always fall on the side of respecting and preserving life. We are the nation founded on the great truth that we are created and the moment we are created, we are endowed by our Creator with the inalienable rights of Life and Liberty.

God help us if we don’t change our thinking on this subject and don’t put an end to the killing fields.

Now, to be fair, most abortions are performed prior to 21 weeks of pregnancy. Agencies like the Center for Disease Control and abortion doctors themselves like to point out that the overwhelming percentage of abortions are performed up to 21 weeks.  But, as I’ll make clear later, 21 weeks (which is very close to medical “viability”) does not mark the start of “life.” The fetus became a new living human being before that – being fully formed (just still very tiny) and exhibiting the functions of life (although some are still weak). Heck, a fetus has a heartbeat at around 6 weeks (although it isn’t heard well on an ultrasound until week 8)..

The point is that although most abortions are performed during the first half of pregnancy, a good portion of abortions are on the living; they are killing unborn babies.

This New York Reproductive Health Act has ignited a new debate on the abortion rights – specifically on the scope of the right and the fact that the Supreme Court never once considered the growing fetus/baby to be a “life,” let alone a unique life (not a clone of the mother).

If this abortion law doesn’t disturb you, look at the other ways that a woman’s right of abortion plays out:

On May 12, 2016, Alabama’s Governor Robert Bentley signed bill SB363 into law, to go into effect later that year, on August 1.  SB363 is the Alabama Unborn Child Protection from Dismemberment Abortion Act.  It was never allowed to go into effect.

SB 363 would have prohibited a physician from performing a “dismemberment abortion” unless it was necessary to prevent serious health risk to the pregnant person. The bill defines “dismemberment abortion” as “the purpose of causing the death of an unborn child, purposely to dismember a living unborn child and extract him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors, or similar instruments that, through the convergence of two rigid levers, slice, crush, or grasp, or any combination of the foregoing, a portion of the unborn child’s body to cut or rip it off.”

The bill would have allowed for a cause of action for injunctive relief and a cause of action for civil damages against a person who performs such a “dismemberment abortion.” Any person who violated the law would be fined $10,000 and/or imprisoned for up to two years.

This law targeted a procedure known as dilation and evacuation (D&E) which is frequently used during second-trimester abortions. According to the American Congress of Obstetricians and Gynecologists, an abortion using suction aspiration can be performed up to 14 weeks’ gestation, but after 14 weeks, the D&E procedure would need to be used to perform an abortion. As such, dilation and evacuation bans, depending upon their language, may ban all surgical abortion past 14 weeks’ gestation.

The bill’s provisions were based on claims that a fetus can feel pain at 20 weeks or earlier.  A look at some medical studies seems to conclude that a fetus doesn’t feel pain before 24-26 weeks (see the NCBI article cited – “Does a Fetus Feel Pain?”).  However, some have reported that pain is observable in fetuses at 18 weeks’ of gestation and that there are clear behavioral responses to noxious stimuli (to a needle, to concentrated saline solution) by 26 weeks’ gestation. The Alabama ACLU argued that leading medical experts such as the American College of Obstetricians and Gynecologists oppose this type of abortion restriction because the D&E procedure so effective. An evidence-based and non-partisan report from the National Academies of Science, Engineering, and Medicine described D&E as a “superior method” of abortion, finding that it is extremely safe with minimal complications.

Despite the gruesomeness that Alabama’s law sought to avoid, the American Civil Liberties Union (ACLU, the organization that Ruth Bader Ginsburg devoted her early legal career to) filed suit to have it overturned. The ACLU alleged that Supreme Court jurisprudence on abortion is clear and that states may not impose undue burdens on a woman’s right to have an abortion or to make it burdensome for her to make necessary medical decisions regarding her pregnancy. It argued that the law must be stricken in order that doctors can continue to use their best judgement to provide the care that is right for their patients, in light of a woman’s right to terminate her pregnancy. At first the ACLU sought an injunction/ temporary restraining order to block enforcement of SB363 (which was granted on July 13, 2016), and then on October 26, 2017, US District Court Judge Myron Thompson ruled the law unconstitutional. On August 22, 2018, the 11th Circuit Court of Appeals upheld the ruling.  [case: West Alabama Women’s Center v. Miller; West Alabama Women’s Center filed suit on behalf of the facility and its doctors and patients against Thomas Miller, Alabama state Health Officer].

The really sad thing is that the 11th Circuit knew its ruling was wrong. It knew that its endorsement of the lower court ruling was intellectually dishonest. It knew its ruling was wrong because it has long-held that the Supreme Court got it wrong in Roe v. Wade (1973) and in subsequent cases such as Planned Parenthood of Se. Pa. v. Casey (1992).  The 11th Circuit has criticized the Supreme Court’s abortion decisions, calling them “an aberration of constitutional law,” and accusing the majority of creating a new right from the bench, thus siding with the views of the dissenting justices, Byron White and William Rehnquist.

If the judges knew the ruling was wrong, why did it issue it?  Judge Joel Dubina of the 11th Circuit was forthright in his explanation. Essentially, he said that as an inferior court to the Supreme Court, he was bound to rule in favor of its prior decisions. And under that standard, he had to conclude that Alabama’s law prohibiting dismemberment abortions of live unborn babies, known as Dilation and Extraction (D&E), violates the High Court’s decisions.

In his special concurrence, Judge Dubina wrote:

“I write separately to agree on record with Justice Thomas’s concurring opinion in Gonzales v. Carhart, 550 U.S. 124, 168-69, 127 S. Ct. 1610, 1639-40 (2007) (Thomas, J., concurring), with whom then Justice Scalia also joined. Specifically, Justice Thomas wrote, ‘I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey [Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992)] and Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705 (1973), has no basis in the Constitution.’ Id. at 169, 127 S. Ct. at 1639. The problem I have, as noted in the Chief Judge’s opinion, is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.”

Since when are federal judges BOUND BY OATH to follow all of the Supreme Court’s precedents?

I looked up the oath of office that federal judges must take when they are sworn in and this is what it says:

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”    [June 25, 1948, ch. 646, 62 Stat. 907; Pub. L. 101–650, title IV, § 404, Dec. 1, 1990, 104 Stat. 5124].

To me, it sounds like each federal judge owes paramount allegiance to the US Constitution from where judicial authority derives.

Kayla Moore, the President of the Montgomery based Foundation for Moral Law and a party supporting the bill, took issue with the ruling and with Judge Dubina’s position:

“Because the Eleventh Circuit had an amicus brief in front of it explaining why the court’s duty was to follow the Constitution instead of the Supreme Court, the court knew it had a duty to disregard Roe and protect the children’s right to live.” Moore added, “The Eleventh Circuit cannot wash its hands of the blood of the innocent by placing the blame on the Supreme Court. The victims of the Eleventh Circuit’s passivity are Alabama’s unborn children, who can now be murdered by having their limbs torn from their bodies while their hearts are still beating.”

In the case (West Alabama Women’s Center v. Miller), Liberty Counsel filed an amicus brief on behalf of the American Association of Pro-Life Obstetricians and Gynecologists and American College of Pediatricians, defending the Alabama law that prohibits dismemberment abortions of live unborn babies based on the medical evidence of their ability to feel intense pain. Liberty Counsel and Alabama’s Pro-Life legislators argue that the scientific evidence supports the assertion that unborn babies feel pain as early as eight weeks gestation.    [Reference: Brandon Moseley’s article “Federal Court Strikes Down an Alabama Abortion Law,” in the Alabama Reporter].

The court used very graphic language to describe the abortion procedure:

“This case involves a method of abortion that is clinically referred to as Dilation and Evacuation (D & E). Or dismemberment abortion, as the State less clinically calls it. That name is more accurate because the method involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child. This is usually done during the 15- to 18-week stage of development, at which time the unborn child’s heart is already beating.

Under the Act, the one performing the abortion is required to kill the unborn child before ripping apart its body during the extraction. [citation omitted] Killing an unborn child and then dismembering it is permitted; killing an unborn child by dismembering it is not. The parties agree that for these purposes an unborn child is alive while its heart is beating, which usually begins around six weeks.”  [See  “How Your Fetus Grows During Pregnancy,” Am. Coll. of Obstetricians & Gynecologists (April 2018)]   Ibid.

The Alabama Legislature did not ban abortions in the state; but rather just this particularly type of abortion. “In this method of ending a pregnancy, dismemberment abortion ‘requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina.’ [Stenberg v. Carhart, 530 U.S. 914, 958 (2000)]. The practitioner then “uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body.”  [Ibid]

Luckily, most of the abortions performed at Alabama’s abortion facilities were done in the first trimester. Only 4% were performed after 15 weeks. For example, in 2017, 6,603 abortions were performed, of which 183 were D&E procedures. Although authorities like to minimize the reality, the number is still heartbreaking.

The comments made by Mat Staver, founder and Chairman of Liberty Counsel, regarding the West Alabama Women’s Center v. Miller decision echo my sentiments exactly and probably those of a great many people.  He said:

“Alabama’s law is a common-sense solution to a barbaric and gruesome procedure. If the vilest criminal has human dignity that prevents cruel and unusual punishment, then how much more should laws protect an innocent unborn child from the most despicable form of torture and death? There are just seven countries in the world that allow children to endure this barbaric procedure and that disgraceful list includes the United States. We must make the womb a safe place again. This case or one like it cries out to the Supreme Court Justices to reverse the horrible abortion decisions. As the court correctly noted, the Supreme Court abortion decisions are an ‘aberration of constitutional law.’ This is true, but they also violate higher law and condone the worst kind of infanticide.”

Similar bans in Kansas, Oklahoma, Louisiana, Texas, and Arkansas have all been blocked when challenged in court. The ACLU is challenging a similar law in Kentucky.

The issue (the constitutionality of such “dismemberment” laws) may not be over, however.  On December 20, 2018, Alabama Attorney General Steve Marshall filed an appeal with the US Supreme Court to review the 11th Circuit’s ruling. Right to Life activists will be watching carefully to see if our new conservative court (perhaps even a “ruthless” court) will agree to hear the case.

You can see from the Roe decision, that by giving women an expansive, unfettered right to terminate her pregnancy (under the guise of “controlling her reproduction”), we have ushered in an era of evil. Since the abortion clinics have opened up, a parade of horribles has ensued.

Because of this parade of horribles and the clear intent on the part of Democrats/progressives/liberals to of protecting this absolute right as against all those horribles, I have to believe that the Roe opinion can be re-visited for a more compassionate, moral, scientific outcome, and yes, constitutional decision.

For years, I have spoken and written about the Roe v. Wade decision (Supreme Court, January 22, 1973, announcing a fundamental right, or “liberty right” for women in aborting their unborn).  I have held the opinion that the decision was perhaps incorrectly decided because its central premise was wrong..  The Supreme Court, including conservative justice Antonin Scalia, made the underlying assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus in writing its Trimester Approach to when a woman has most control over her reproduction. The “Trimester Test” was the approach the Court used in summarizing the “balancing of competing interests” at stake in a woman’s pregnancy – the woman’s interest in controlling her reproduction and what happens in her uterus, the state’s interest in the life of the unborn, and the unborn’s right to the life it was intended to have.  Sadly, the Court, in fleshing out the competing interests in its opinion, made it clear that any threat to a woman’s health in the third trimester (where typically the interests are greatest for the state and for the unborn) outweighs the interests of the other parties. And it explained that the threat need not be medical in nature. The unborn or the pregnancy itself need not pose any physical harm to her. Other types of harm justifying an abortion up until the moment of birth would include emotional, psychological, and even financial. The mere fact that the pregnancy poses stress on the woman would justify an abortion, according to the high Court. That is why Roe v. Wade stands for the general rule that a woman has a constitutional right to an abortion at any time during her pregnancy, for any reason. She has an unfettered right to abort her fetus or her unborn baby…..  she has a right to an abortion on demand.

Anyway, going back to my concern with the Roe v Wade opinion.  I believe the Court used the wrong approach in reaching its opinion. Again, it made the general assumption that a “person” means someone who walks around, who has an independent life outside a woman’s womb. And therefore, the Court looked to the “viability” of the fetus. Viability means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Today, medical experts believe a fetus is viable at around 24 weeks (which is about halfway in the second trimester).  The proper assessment should have been when the fetus becomes a “life.”  We know mere conception doesn’t equate to life; it merely sets in motion what would become fetal development resulting in a fully-formed baby that the mother welcomes into the world to continue its growth and development outside the womb. We also know that life does not equate to viability because viability just asks when the baby can likely survive outside the womb. Implicit in that definition is that there is already a “life.” It just looks to see how advanced in development that life is.  The unborn cannot live without the protection and life-sustenance from its mother. Similarly, a newborn also cannot live on its own, without the protection and life-sustenance from its parents or other caregiver. A life scientifically comes into being when there is a heartbeat, when the baby has its organs, and when it is nearly completely differentiated so that really all that is needed is more growth and fine-tuning of its life support systems for the outside world. Under this definition, the unborn is a “life” much earlier than viability.

“Life” = “personhood,” and it should be that simple. What kind of society are we when we go out of our way, legally, emotionally, and psychologically to strip certain groups of their personhood and therefore their rights? The most brutal of killers gets our full attention regarding his rights and his place as “a fellow human being.” But the sweetest, most gentle, the purest, and the most helpless are the ones we minimized and disregard. The 8th Amendment is supposedly a testament to our compassion as a civilized society. If that is so, what is the Roe decision and what is New York’s “late-term abortion” law?  I would submit that it is a testament to our savagery and to this the most selfish, self-obsessed, and immoral society. We simply can’t justify these polar extremes of our so-called “civility.”

The key is using “life” as the key determinative is that when there is a “life,” our laws provide protection, including observance of its fundamental rights. I look to the Declaration of Independence which professes:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness….

In other words, the minute an individual is created, he or she is endowed with inalienable rights, including the right to Life. Moreover, government is instituted for the primary purpose of secure those rights. It makes no difference whether that individual is 15 years old, 40 years old, 10 years old, 1 month old, or 20 weeks old. The minute it became a living being, it is understood to be entitled to the most essential of all inalienable (those attaching to our very humanity) rights. Technically, according to the words of the Declaration, the minute a new human being is created (joining of reproductive cells at conception; “conception” comes from “conceived” which means a new life, a new human being, has been conceived).

Therefore, a “person,” for purposes of our Rule of Law and our US Constitution (including the Bill of Rights and the 14th Amendment) includes the unborn.  Again, maybe not exactly at conception and for several weeks after that, but certainly, and clearly, towards the end of the first trimester and the beginning of the second trimester.  And as such, the unborn “life” has the same fundamental rights as the mother. Once the mother allows the pregnancy to reach the point where life has been created, then she holds no greater interest than the interest the unborn has in continuing its development.  In other words, the “competing interests” explanation of a pregnancy shifts greatly. And unlike the Court’s opinion in Roe, where the unborn never was considered a legal “person” in order to take advantage of the rights and liberties enshrined in our Declaration, our Constitution, and our laws and therefore the woman held all the power to decide the unborn’s fate, the approach I believe should have been taken would recognize that the unborn is absolutely a “person” so that a woman does NOT have the unfettered right to abort her unborn, kill it, or otherwise dispose of it.

We can explain the failure of the Supreme Court in Roe using additional legal arguments as well.

The case involved a challenge to a Texas statute that criminalized abortion, which means that Norma McCorvey (aka Roe) filed suit claiming an infringement of an essential (liberty) right protected by the 14th Amendment. Challenges to state law claiming a violation of civil rights or liberty rights recognized by the Bill of Rights are brought under the Due Process Clause of 14th Amendment. Over the years since it was adopted, the Supreme Court has used the Due Process Clause of the 14th Amendment to “incorporate” the liberty rights of the US Bill of Rights as against the states; that is, if the federal government cannot infringe on our religious liberty than neither can the states, if the federal government cannot ban firearms, neither can the states, and so forth and so on.

The 14th Amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As the Court had noted, it first had to determine if the unborn are considered “persons” within the meaning of the 14th Amendment. It concluded that they were not.

If the Court would have exercised proper interpretation authority and followed its own established 14th Amendment jurisprudence (precedent), it would have taken an originalist approach to the analysis, and the outcome would have been quite different (although not ultimately providing for the right of women to have an abortion; the decision would have been left to the states themselves).

Under an “originalist” approach, the Court would have had to determine what the word “persons” was understood to mean when the 14th Amendment was written and ratified. “Originalism” is often equated with “Textualism” (where judges look at the meaning of the words and intent at the time they were written)  A honest analysis would have looked not only at the definition of the term “persons” around the time of 1868, but also at society’s view of abortion at that time. In fact, for a claimed right to be covered by the 14th Amendment and hence free from government/state regulation, that right would have had to have been considered an essential liberty right at the time the Amendment was adopted. In other words, the Court should have asked two questions: “What did the term ‘persons’ mean back in 1868?”  And, “Was abortion considered a fundamental liberty right back in 1868?” [That is, the Court should have asked: Was the asserted right to an abortion “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)].

Josh Craddick, a Harvard Law student recently had a Law Review article published in which he looked into the definition of “persons.”  In his article (“Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”), he noted that layman’s dictionaries at the time of the adoption of the 14th Amendment (adopted on July 28, 1868) treated the concepts of humanity and personhood interchangeably. He also consulted William Blackstone’s Commentaries on the Laws of England, a treatise that had profound influence on legal thinking, was used in American law schools, was relied on by the Supreme Court, and continues to be cited even today in Supreme Court decisions. It is cited at least 10-12 times each year. Blackstone expressly recognized that personhood and the right to life existed before birth. He set forth a simple and clear legal standard:  “Where life can be shown to exist, legal personhood exists” (emphasis added). A look back through history shows that there were no laws to specifically protect the unborn prior to “quickening” (when the mother feels the baby begin to kick and move around) and prior to birth, and that makes sense in light of the generally-accepted definition of “personhood.”  A pregnant woman was carrying a “life,” and hence she was carrying a new person.

With respect to the second question (“Was abortion considered an essential/fundamental liberty right back in 1868?”), Craddick researched the societal view of abortion back in the day.  In his article, he showed that many of the states that voted to ratify the 14th Amendment had laws criminalizing abortion. What does that mean?  It seems to confirm that at the time, Americans, state lawmakers, and government officials understood personhood to include the unborn, just as Blackstone defined it.  It shows that society in 1868 viewed personhood and life in much the same way that pro-lifers understand.

Craddick wrote:

When the Amendment was adopted in 1868, the states widely recognized children in utero as persons. Nearly every state had criminal laws proscribing abortion, and most of these statutes were classified among ‘offenses against the person.’ There can be no doubt whatsoever that the word ‘person’ referred to the fetus.” Twenty‐three states and six territories referred to the fetus as a ‘child’ in their statutes proscribing abortion. At least twenty‐eight jurisdictions labeled abortion as an ‘offense against the person’ or an equivalent criminal classification. Nine of the ratifying states explicitly valued the lives of the preborn and their pregnant mothers equally by providing the same range of punishment for killing either during the commission of an abortion. The only plausible explanation for this phenomenon is that the legislatures considered the mother and child to be equal in their personhood. Furthermore, ten states (nine of which had ratified the Fourteenth Amendment) considered abortion to be either manslaughter, assault with intent to murder, or murder.

The adoption of strict anti‐abortion measures in the mid‐nineteenth century was the natural development of a long common‐law history proscribing abortion. Beginning in the mid‐thirteenth century, the common law codified abortion as homicide as soon as the child came to life (animation) and appeared recognizably human (formation), which occurred approximately 40 days after fertilization. Lord Coke later cited the “formed and animated standard,” rearticulating it as “quick with childe.”

Craddick went on to point out that even by the mid-nineteenth century, courts and states alike, were increasingly rejecting the “quickening” standard as scientifically obsolete and replacing it with fertilization. Imagine that !!

Sadly, we all know the reasons the justices of the Supreme Court made that colossally-erroneous assumption that “personhood” means “someone who walks around, who has an independent life outside a woman’s womb.” First, the Court knew that society couldn’t be responsible for all the unwanted births; the burden they would impose on society would break our system of welfare and social services. Second, the case moved up through the court system at a time when the Women’s Rights Movement was fighting for equality in the workplace and in the home, with equality resting squarely on her ability to determine when, or if, she would reproduce. A woman could not control her career, her future, or even her burden at home if she were to be held hostage by her uterus and her God-given ability to bring forth new life. The Court, obsessed with social justice and equality, saw the case as one to give the Women’s Rights Movement what it wanted – the ability to finally be equal in the workforce.

I think the abortion discussion in our country needs to go in this general direction –  going back to a proper, more originalist and textualist analysis of what the right is or what it should be, and to replace the erroneous assumption that a “person” (for 14th Amendment purposes) is one that is capable of living and functioning outside the womb to the definition in place at the time the amendment was adopted, which was the start of life. Only by honoring the definition in place at the time do we know exactly which classes of individuals were intended to be covered by it – to have their rights and privileges acknowledged and protected.  Our national-level pro-life activism needs to go in this direction if we can ever hope of limiting the number of abortions, of limiting the number of unborn babies killed, and of educating our girls and young women on being responsible with their bodies.

As I mentioned earlier, the New York “late-term abortion” law has renewed great controversy on the topic of abortion. The sense that I am getting is that the controversy is not necessarily about women having the right to abort an inconvenient pregnancy but about how expansive that right is and whether it needs reasonable limitations. After all, none of the “actual” rights embraced in our Bill of Rights, such as the right to exercise one’s religion freely, the right of free speech, the second amendment, the fourth amendment, etc are without limitations.

I think a case can be made that the right needs limitations, and if that can be achieved, then women can be both pro-life and pro-choice, if that makes any sense.  If we look at a “Balancing of Rights” approach rather than a “Balancing of Interests” approach – that is, if we balance the rights of the woman to control her reproduction with the big daddy of them all, the right to life, of the unborn child, rather than balance the rights of the woman to terminate her pregnancy with the interest of the state in protecting the pregnancy – then we will come to a point in the pregnancy when the developing fetus becomes a “life.” At that point, society can then legally deny abortions (except for situations such as rape, incest, or risk to the woman’s life).  A woman will enjoy a period of time to decide whether she wants to continue the pregnancy (hence, pro-choice), but if she waits too long, then she will not be able to abort the baby and will not be able to take a life (hence, pro-life).

My point in analyzing the Roe v. Wade case and in writing this article is to start a conversation and a debate that has us siding more with life and in finding ways to cut down on the innocent lives that are taken in the name of “women’s rights.”

With that in mind, I wanted to share some back-and-forth I’ve had with those who don’t exactly think like my on the issue of abortion.  I’ve cut and pasted my comments and the responses I’ve gotten from a social media post on a friend’s Facebook page announcing New York’s “Reproductive Health Act.”

ABORTION ARTICLE - John Tedesco post

MY COMMENT:   I hope the recent news out of New York of a “Late Term Abortion” law that passed, allowing for the termination of an unborn baby up until full term development, shocks your conscience. In a span of just 11 days, we heard national leaders like Rep. Nancy Pelosi and Sen. Chuck Schumer call a border wall to stop the flood of deadly drugs and human trafficking immoral” while an entire state believes it is moral to kill a baby up until the moment it takes its very first breath of air. I struggle, as a human being and as a woman, to find any logic remaining in this country. If any of our legislatures only had the decency to pass a law to define life, even if it is at 8-12 weeks, then the number of abortions would be greatly decreased.  That’s all it would take to stop the wholesale killing of the unborn. But no legislature, including the US Congress, seems willing to do it. It would force women to make the decision to abort the fetus inside them very early on, hopefully before a heartbeat and the commitment to a human life. I don’t think I’m unreasonable or out of line in taking this position.

VINNY (responding to me):  It’s a woman’s body. She should have complete control over it.  It’s not a hard concept.

MY RESPONSE (to Vinny):  That’s a very selfish and narrow-minded way to look at it. Plus it totally ignores the role women play in the grand scheme of things, as created by God for the primary purpose to propagate the human race.  Democrats and liberals refer to abortion in terms of “reproductive health” and as a “woman’s right to control her reproduction.”  It is never put in terms of what it does to the developing fetus or the unborn child, which is death. Why isn’t the bill titled “The Unborn Have no Right to Life” Law?

VINNY (responding to me):  A woman needs to have the ability to control when she becomes a mother. A man never has to be burdened by a baby, and neither should a woman.

MY RESPONSE (to Vinny):  I know this sounds absolutely archaic to liberal women, but a woman has always had the right to control her reproductive capability. She has the right to keep her legs closed during her fertile days; she has the right to say no. She has the right to take contraceptive pills or use contraceptive devices. And if she uses neither, then she has the right to demand that her sex partner wear a condom or forego fooling around. All of these PREVENT conception and allow a woman to control her reproduction rights. All of these PREVENT the immoral act of killing a living fetus on its way to developing into a human being. Again, I know this sounds archaic and to the liberal woman, presents too many barriers to a loose and casual lifestyle and to spontaneous sex with someone they just met. But in the balance of things – prevention vs. harm – I think we can all agree that prevention is the best course. God and nature gave women the blessing of giving life and propagating the species; He didn’t intend for her to have the unfettered right to fornicate without consequences. The consequence is the greatest privilege of all — to create new life. It’s so sad so many women think of it as a nuisance and a burden..  as a curse.

COMMENT from Konabird2:  As one individual said last night, “A clump of cells feels no pain.” How did we get to the point where as refer to a baby as merely “a clump of cells” ?

MY RESPONSE (to Konabird2):  To a woman or girl who doesn’t want the pregnancy, what she is carrying is just “a clump of cells.”  To a woman who wants the pregnancy, the minute she sees that blue line, she immediately begins to call her fetus a “baby.”  It all depends on the woman’s intention with her pregnancy.

COMMENT from Sandy S:  This is a dishonest strawman argument. The two circumstances are entirely different save chemicals are involved in both and in cleaning toilets and killing germs.. Let’s talk about when a person is a person or how do we take care of all the unwanted  children that no abortion laws are going to have to be raised. Those are real questions

MY RESPONSE (to Sandy S):  Sandy,  I agree with you that we can’t take care of all the unwanted children that, without abortion, would be born. They would be born to those that don’t want them, can’t take care of them, are mentally and psychologically unfit to raise them, or who will simply abuse and ignore them. In all of these situations, the child will not be raised properly and will likely be “damaged goods.” They will also be born to those who can’t afford to raise them, which will in turn become another burden on taxpayers. Taken together,  if all the babies conceived were to be born our resources and our services would be burdened to the point where it fatally strains our system. This was actually predicted by economists Cloward and Piven many years ago. My point is that women MUST do their part in preventing the killing of babies by preventing the creation of them in the first place. They have it within their power to do so. We can’t accept the notion that just because we can’t provide for all the unwanted babies that we should allow them to be killed at any time up until the moment of their birth.

Sandy S (responding to me):  Is fetal heartbeat the gauge of living. When the child cannot survive without the mothers body?  Is life only at birth when a child can breathe on its own? I’m not sure if i want government making that decision anyway, as the mother is closest and most involved with the real consequences of the decision. Shouldn’t it be up to her alone? Unfortunately, lots of people want to step in and tell others what to do, how to live and love, how to die, and who to worship. It’s kind of amazing how important some people think their opinion should be held in absolute regard.

MY RESPONSE (back to Sandy S):  I think science can help make the decision. A woman who wants an abortion bad enough will not be fair to the life inside her. My point is that having an honest debate on a law to define life (in order to stop the killing of the unborn) is a better route by far than allowing the torture and killing of an unborn child up until the moment he/she takes it first breath. It is a negotiated solution to a problem that as it stands now totally ignores the rights of a newly developed human being.

COMMENT from Bloody Roses:  What about rape and sexual abuse? Also, not all sexual relations are for reproductive reasons…  Woman are allowed sexual pleasure and orgasms too.

MY RESPONSE (to Bloody Roses):  Rape and sexual assault get special consideration, as they have always gotten special consideration and exceptions in society. No one is denying women  are allowed sexual pleasure…  this issue isn’t about that. It’s about balancing the desires and sexual freedom with nature’s limits on, and purposes for, women I order that we don’t unnecessarily kill the unborn.

COMMENT from Grace Madej:  But I thought y’all were AGAINST birth control?

MY RESPONSE (to Grace Madej):  WHO is against birth control??  Are you talking about strict Catholics??  I happen to be Catholic but I’m also a realist. I think we absolutely need birth control in our society. We can’t be naive to think we live in a world long gone where women save themselves for their husbands and welcome every act of sex as a chance to have another child. If we are naive to think birth control is a sin, then we have to accept the far greater sin of abortion and the chance that a good percentage of those abortions were performed on fully-formed living, yet not ready to live out of the womb, human beings. I’m not naive about conception and fetal development . I know that a fertilized egg goes on to become a mass of cells and even up to a few weeks it is not fully committed or destined for life. I’ve had 3 miscarriages, including one in my second trimester, so I know that not every conception event equals life. My heartfelt point and goal is to see our national conscience relieved by putting more pressure on women to do the right thing and if they believe a pregnancy is wrong for them and that they can’t be the parent God and nature intended them to be (or they don’t want to carry a baby to term and give it up for someone else to love), then  they should make that decision very early on. I think that’s where our counseling and our conversations about abortion should be focused. It’s just my opinion, of course.

 

We need to have conversations.  We need to find common ground.  We can’t continue to offend so greatly our national conscience.

One final thing to wrap your mind around —  The same state (New York) that has just passed the “late-term abortion” bill has abolished capital punishment. The state says it is unconstitutional to kill a person guilty of a capital offense but constitutional for a woman to kill her baby.

The state can’t impose the death penalty on even the most vile and heinous of criminals, but a woman can impose the death penalty on the most innocent and harmless of human beings. “You are not allowed to give a lethal injection to convicted serial killers, pedophiles, rapists, school shooters, or any other species of monster. But you can give a lethal injection to an infant. Indeed, you can only give lethal injections to infants in New York. The crime of child rape will not earn you the needle. The crime of being conceived in the wrong womb might. It is a capital offense, and you may well be made to suffer dearly for it.”  (Matt Walsh).

The hypocrisy is unreal. But that’s what defines progressives and extreme women’s rights supporters.

 

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References:

Roe v. Wade, 410 U,S. 113 (1973), Majority Opinion, written by Justice Harry Blackmun, Cornell Law Library –  https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZO

Roe v. Wade, 410 U,S. 113 (1973), Dissenting Opinion, written by Justice William Rehnquist, Cornell Law Library –  https://www.law.cornell.edu/supremecourt/text/410/113%26amp#writing-USSC_CR_0410_0113_ZD

Roe v. Wade, Dissenting Opinion, by Justice Byron White –  https://en.wikisource.org/wiki/Roe_v._Wade/Dissent_White   and https://www.scribd.com/document/217330653/Dissent-White

West Alabama Women’s Center v. Thomas Miller, 11t Circuit Court of Appeals opinion –  http://media.ca11.uscourts.gov/opinions/pub/files/201715208.pdf

Laurie Higgins, “31 States Permit Full-Term Abortions,” Illinois Family Institute, January 28, 2019.  Referenced at:  https://illinoisfamily.org/life/31-states-permit-full-term-babies-to-be-killed-in-the-womb-for-virtually-any-or-no-reason/

Joshua J. Craddick, Joshua J. Craddock, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?,” Harvard Journal of Law and Public Policy, Vol. 40, No. 2 (2017).  Referenced at:  file:///C:/Users/diane/Downloads/SSRN-id2970761.pdf    [Abstract:  What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?  The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the meaning of the Fourteenth Amendment.]

Calvin Freiburger, “Article in Harvard Law Journal Concludes: The Preborn Child is a Constitutional Person,” Live Action, June 1, 2017.  Referenced at:  https://www.liveaction.org/news/landmark-harvard-essay-preborn-child-constitutional-person/

Steven Ertelt, “You Can’t Give a Lethal Injection to Murderers in New York, But You Can Give One to an Unborn Baby,” LifeNews.com, January 24, 2019.   Referenced at:  https://www.lifenews.com/2019/01/24/you-cant-give-a-lethal-injection-to-murderers-in-new-york-but-you-can-give-one-to-an-unborn-baby/?fbclid=IwAR1_9ePUFqddWs1TwqdaoVFNkW06v9xqJXkja9Y4yPLfYVhSbZLHOKi2K2Q

Matt Walsh, “WALSH: You Can’t Give A Lethal Injection To Criminals In New York But You Can Give It To Infants,” DailyWire, January 23, 2019.  Referenced at:  https://www.dailywire.com/news/42538/walsh-you-cant-give-lethal-injection-criminals-new-matt-walsh?utm_source=facebook&utm_medium=social&utm_campaign=mattwalsh

VIDEO:   Dr. Anthony Levatino, former abortion doctor, explains that abortion is never medically necessary to save a woman’s life during pregnancy – https://www.youtube.com/watch?time_continue=4&v=ysl1tRnk-ig   [Let me illustrate with a real-life case that I managed while at the Albany Medical Center. A patient arrived one night at 28 weeks gestation with severe pre-eclampsia or toxemia. Her blood pressure on admission was 220/160. A normal blood pressure is approximately 120/80. This patient’s pregnancy was a threat to her life and the life of her unborn child. She could very well be minutes or hours away from a major stroke. This case was managed successfully by rapidly stabilizing the patient’s blood pressure and “terminating” her pregnancy by Cesarean section. She and her baby did well. This is a typical case in the world of high-risk obstetrics. In most such cases, any attempt to perform an abortion “to save the mother’s life” would entail undue and dangerous delay in providing appropriate, truly life-saving care. During my time at Albany Medical Center I managed hundreds of such cases by “terminating” pregnancies to save mother’s lives. In all those cases, the number of unborn children that I had to deliberately kill was zero.]

CHART:  State-by-State Later Term Abortion Policies –  https://www.kff.org/womens-health-policy/state-indicator/later-term-abortions/?currentTimeframe=0&selectedDistributions=state-prohibits-some-abortions-after-a-certain-point-in-pregnancy–threshold-for-later-term-abortions–later-term-abortion-permitted-when-pregnancy-threatens-womans&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D   [By the way, it appears that North Carolina, it appears from the chart (updated 2018) that North Carolina permits a later-term abortion “for life and health,” which essentially means that a woman can terminate her pregnancy at any time for any reason, since the Supreme Court has interpreted “health” to mean any number of things – physical, emotional, psychological, financial, familial, and for age or for stress. North Carolina joins 23 other states that apply this lower standard for a later-term abortion – Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New York, Ohio, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin, and Wyoming. Compare that standard to the more strict one, which permits a woman to have a later-term abortion “for life and physical health.”  Sixteen (16) states have this more strict standard – Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Wyoming.  There are 3 states that permit a later-term abortion only when the pregnancy poses a direct risk to the mother’s life. Those states are Idaho, Michigan, and Rhode Island.]

Alabama “Unborn Child Protection from Dismemberment Abortion” Act (SB363) –  https://rewire.news/legislative-tracker/law/alabama-unborn-child-protection-dismemberment-abortion-act-sb-363/

Brandon Moseley, “Federal Court Strikes Down an Alabama Abortion Law,” Alabama Reporter, August 23, 2018.  Referenced at:  https://www.alreporter.com/2018/08/23/federal-court-strikes-down-an-alabama-abortion-law/

GHI Breborowicz,” Early Pregnancy: Limits of Fetal Viability and Its Enhancement,” NCBI (National Center for Biotechnology Information), January 5, 2011; pp. 49-50.  Referenced at:   https://www.ncbi.nlm.nih.gov/pubmed/11753511     [“Viability” of a fetus, or “fetal viability,” means that the fetus has reached such a stage of development as to be capable of living, under normal conditions, outside the uterus. Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. Consequently, there is, at the present time, no worldwide, uniform gestational age that defines viability. Viability is not an intrinsic property of the fetus because viability should be understood in terms of both biological and technological factors. It is only in virtue of both factors that a viable fetus can exist ex utero and thus later achieve independent moral status. Moreover, these two factors do not exist as a function of the autonomy of the pregnant woman. When a fetus is viable, that is, when it is of sufficient maturity so that it can survive into the neonatal period and later achieve independent human status given the availability of the requisite technological support, and when it is presented to the physician, the fetus is a patient. In the United States viability presently occurs at approximately 24 weeks of gestational age (Chervenak, L.B. McCullough; Textbook of Perinatal Medicine, 1998)].

“Can a Fetus Feel Pain?,” NCBI (National Center for Biotechnology Information), April 15, 2006; 332 (7546): 909–912.  Referenced at:  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1440624/

“How Your Fetus Grows During Pregnancy,” American College of Obstetricians & Gynecologists (ACOG),  (April 2018).  Referenced at:   https://www.acog.org/Patients/FAQs/How-Your-Fetus-Grows-During-Pregnancy?IsMobileSet=false

Traci DeVette Griggs, “New York’s War on Children Hits a New Low on Anniversary of Roe v. Wade,” Family Policy Facts (NC Family Policy Council), January 23, 2019.  Referenced at:  https://www.ncfamily.org/new-yorks-war-on-children-hits-a-new-low-on-anniversary-of-roe-v-wade/

Roe v. Wade, Texas Bar –  https://www.texasbar.com/civics/High%20School%20cases/roe-v-wade.html

Roe v. Wade (1973), as explained by Clarke Forsythe, Senior Counsel for Americans United for Life (AUL) and Melissa Murray, Berkeley Law School professor.  [Clarke Forsythe is also the author of the book Abuse of Discretion: The Inside Story of Roe V. Wade, and Ms. Melissa Murray in addition to being a law school professor, also as the Faculty Director for the Center for Reproductive Rights and Justice].  Referenced at:  https://www.khanacademy.org/humanities/ap-us-government-and-politics/civil-liberties-and-civil-rights/amendments-due-process-and-the-right-to-privacy/v/roe-v-wade    [See Appendix below for a transcript of this video]

 

APPENDIX:  (Transcript of the Khan Academy Video, as modified by Diane Rufino, to add more information)

Question:  “Mr. Forsythe, could you set the stage for us a little bit. What was going on during this time period?”

Mr. Clarke:  “Well, there were efforts in the 1960s to repeal abortion laws in the individual states and when abortion activists were dissatisfied with those efforts, they decided to go into the courts. And around 1969, they took some cases into the courts and ultimately, there were 20 or more cases challenging state laws in the courts between 1969 and 1973. Roe vs. Wade was the case from Texas.”

Ms. Murray:  “Roe was litigated in the early 1970s. It was a period of enormous change in the United States. We were beginning to see beginnings of the women’s rights movements, the beginning of the gay rights movement, and of course, the civil rights movement of the 1960s was moving in a lot of different directions. At the time, the question of abortion was very much on the minds of lots of different state legislatures because there had been moves to liberalize much of the criminal law that dealt with matters of sex and sexuality, including abortion. At the time, four states, New York, Alaska, Hawaii, and I believe Washington, had actually taken steps to repeal their laws criminalizing abortion. And about 13 other states had taken efforts to liberalize their laws criminalizing abortions, but in number of other states, around, at least 20 or more, there remained on the books, laws that absolutely criminalized abortion, except in situations where it would be necessary to preserve the woman’s health or life, or in cases of rape, incest, or fetal anomaly.”

Mr. Clarke:  “Abortion rights attorneys sought plaintiffs who could challenge the Texas law and the Georgia law [ie,  They were looking for a “test case”]. There were two attorneys from Texas who found Norma McCorvey, who they gave the pseudonym of Jane Roe, for purposes of protecting her privacy.”

Ms. Murray:  “And so Norma McCorvey brought this case. She was an unmarried 22 year old woman living in Dallas County, Texas, who found herself pregnant for the third time. She gave birth to her first child, a daughter, and  ultimately signed over custody to her mother to raise her since her life wasn’t very stable (she was moving around a lot). She gave her second child up for adoption. When she found herself pregnant for a third time, she wasn’t willing to do either of these things again and so she simply wanted to safely and legally terminate her pregnancy. But this was impossible under the Texas law. Texas had, since the 19th century criminalized abortion in all cases except those instances where it was necessary for the health and safety of the mother. And so she then was faced with the question of what was she going to do. And the only thing she could think to do then (that is, what her lawyers thought, and sought, to do), was to challenge the law as being unconstitutional. So she was put in contact with Sarah Weddington and Linda Coffee, two young women who had recently graduated from law school. Sarah Weddington was only 26 years old at the time she helped Norma McCorvey bring this case. They sued the State of Texas to challenge the constitutionality of Texas’ criminal abortion ban.”

Mr. Clarke:  “But as the history shows, there was no trial, there was no evidence, there were no expert witnesses. Jane Roe never testified. As we all know, she never got an abortion. She gave birth and placed her child for adoption.”  [In the years after the decision, Norma had a complete change of heart and became a strong opponent of abortion].

Question:  “Okay, so Roe was Norma McCorvey. Who was Wade?”

Mr. Clarke:  “Henry Wade was the District Attorney for Dallas, Texas, where the case was filed in Federal District Court.”

Questions:  “So the case eventually made it to the Supreme Court.  How did the Court rule?”

Mr. Clarke:  “The Justices declared the Texas and Georgia laws unconstitutional and then rewrote a national law, a national abortion law, in which they said that the states could not regulate or limit abortion in the first trimester. They could regulate more in the second trimester, the second three months of pregnancy, to protect maternal health and they could regulate in the last three months of pregnancy, the last trimester, to protect maternal health or fetal life. The attorneys for the plaintiffs claimed that abortion fell within the right to privacy, even though privacy is not in the text of the Constitution, they said it was derived, or based in the language of the 14th Amendment of the Constitution even though the 14th Amendment doesn’t say anything about abortion, or the unborn child; the 14th Amendment just uses the term liberty. Ultimately the Court said that the right to abortion is part of the right to privacy based on the 14th Amendment.”

Question:  “That’s very interesting. I’ve learned through many of these interviews, that this right to privacy is something that is never actually explicitly stated throughout the Bill of Rights, but there’s a penumbra of privacy that you see in a few ways. What was the Court’s reasoning that the right to an abortion could fall under this zone of privacy?”

Mr. Clarke:  “If you read the Roe opinion – specifically, on page 152 of the Roe opinion – Justice Blackmun starts out by citing a string of prior Supreme Court cases, beginning about 1910, which elude to a right of privacy which undergirds other rights in the Bill of Rights. Blackmun argued that these cases lead to a general right of privacy, and that this right of privacy is broad enough to encompass a woman’s right to an abortion. But then four pages later, on page 156, Blackmun turns around and says that abortion is inherently different from all those other cases that make up the right of privacy (including the right to use contraception and contraceptive devices to control fertility and reproduction, Griswold v. Connecticut (1965) because it involves the taking of a life.”

Ms. Murray:  “The right of privacy doesn’t actually come from Roe vs. Wade. It comes from a case decided about eight years earlier, in 1965, called Griswold vs. Connecticut.  The issue in the Griswold case was whether a Connecticut state statute that made it a crime to use contraception or even to counsel patients about contraception violated the Constitution. Planned Parenthood League of Connecticut opened up a birth control clinic in New Haven, Connecticut. They were promptly arrested and the clinic was closed. They challenged the statute, arguing that the right to use contraception was a fundamental individual right. Furthermore, they argued that since individuals have the right to use contraception, doctors also have the right to advise patients about such. Patients are entitled to be informed about their medical choices. The Supreme Court, in an opinion authored by Justice William Douglas, agreed with the clinic. In the Griswold case, the Court articulated for the first time this right of privacy. The opinion explained that while the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First (the right to conscience created by the right to worship freely), the Third (the right to be free in one’s home from the quartering of troops), the Fourth (the right to be safe and secure in one’s own person, one’s home, and with one’s effects from unreasonable government searches and seizures), and the Ninth Amendments create the right to privacy which encompasses marital relations. Douglas, writing for the majority, indicated that this right had actually ‘been percolating in the Court’s decisions for some time.’”

Question:  “Did any of the Justices dissent in the Roe decision and if so, why?”

Mr. Clarke:  “Well there were two dissents, one by Justice White and the other by Justice Rehnquist. Justice White said that the Court was engaging in raw judicial power (ie, judicial activism) and that the Justices did not have the right or the authority, on account of the 10th Amendment, to strike down the abortion laws of the individual states: it could only rely on a doctrine called ‘substantive due process.’ The justices were addressing the assertion that a woman’s right to an abortion is a fundamental right and hence, under the Due Process Clause of the 14th Amendment, it cannot be violated or burdened.  The Due Process Clause says that no person can be deprived of “life, liberty, or property, without due process of law.” However, there are clear limits as to which individual “liberty” rights are imposed on a state (that is, those which it is obligated to respect and refrain from regulating). In in 1934, the Supreme Court held that due process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”  In other words, as explained further by the Court, the right must have been recognized as a liberty right (essential to our sense of ordered liberty) at the time of the adoption of the 14th Amendment to be recognized by its Due Process Clause. Justice Rehnquist said that there is clear historical evidence that many states passed abortion limits and prohibitions precisely at the time of the framing of the 14th Amendment in the 1860s and leading up to 1868, which is when the Amendment was added to the Constitution. In other words, this history was evidentiary history. As such, this history of state limits and prohibitions on abortion actually served to contradict the petitioner’s (the birth control clinic’s) assertion that the 14th Amendment was intended to include a right to abortion.”

Question:  “It appears that Roe is not the last word on abortion in the United States. There have been several later cases that were important to this as well, like Planned Parenthood vs. Casey, or Whole Woman’s Health vs. Hellerstedt. Can you talk a little bit about how those cases have altered the scope of the right to abortion?

Ms. Murray:  “As soon as Roe was decided in 1973, there was an effort to sort of roll it back and hem it in a little bit. Frank Church, who’s a Senator from Idaho, announced ‘The Church Amendment,’ which basically says that physicians don’t have to perform abortions if doing so would conflict with their conscience or conscientious beliefs. So we see one way to limit the reach of this right – by limiting the number of providers who are available to offer abortions.”

Mr. Clarke:  “In fact, the Court has kind of cut back on Roe vs. Wade in four cases over the years. But then in 2016, it appeared to return to its original position that the state nor federal government would tolerate any impermissible burden to a woman’s right to an abortion:

  • Harris vs. McRae [A 1980 case in which the Court acknowledged that federal funding could be limited for abortions. The Court held that states participating in the Medicaid program (established under Title XIX of the Social Security Act) were not obligated to fund medically necessary abortions. Title XIX of the Social Security Act was enacted to provide federal financial assistance to states that chose to reimburse certain costs of medical treatment for needy persons. Beginning in 1976, Congress passed a number of versions of what was known as the “Hyde Amendment” which severely limited the use of federal funds to reimburse the cost of abortions under the Medicaid program. Cora McRae, a pregnant Medicaid recipient, challenged the Hyde Amendment, filing suit against Patricia R. Harris, the US Secretary of Health and Human Services. The Supreme Court found that a woman’s freedom of choice did not carry with it “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices”].
  • Planned Parenthood vs. Casey [A 1992 case in which the Supreme Court upheld various restrictions to an immediate abortion (an “abortion on demand”). The Pennsylvania state legislature amended its abortion control law in 1988 and 1989, to required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. In a bitter, 5-to-4 decision, the Supreme Court again re-affirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the Court imposed an articulable standard to determine the validity of laws restricting abortions. The standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden” on a woman’s right to an abortion, which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement]. Other similar cases involving restrictions on immediate access to an abortion reached the same conclusion.
  • Whole Woman’s Health versus Hellerstedt [In 2016, the Supreme Court flipped.  In this case, the Supreme Court was asked to rule on the constitutionality of a Texas law that put limits on physicians performing abortions and on the abortion facilities themselves. A group of abortion providers sued the state. In a 5-3 opinion authored by Justice Stephen Breyer (remember, Justice Scalia had passed in February or 2016 and so it was only an 8-member Court at the time) the Supreme Court noted that the provisions that were challenged did not actually offer the medical benefits that they claimed to offer. Hence, as a matter of constitutionality, they were insufficient to justify the burdens on access that each of those provisions imposed.

Question:  “What do you see as the future of Roe vs. Wade?”

Mr. Clarke:  “Well, the Supreme Court has failed as the national abortion control board. It cannot monitor abortion. It can’t intervene, it can’t regulate or legislate itself, it can’t act as public health administrators, and it can’t investigate. And so I believe it’s absolutely certain that the Court, sooner or later, will have to overturn the Roe decision because of this failure and return the matter to the states.”

Ms. Murray:  “Remember, when they were talking about repealing or reforming those abortion laws we referred to earlier, from the 1960s and 70s, it was connected in a big way to the growing women’s rights social movement. Perhaps the most critical question of that movement asked ‘What will be the role of women going forth in a modern society.’ When the question of contraception came before the Court in 1965, one of the questions was whether women should be allowed to control her reproduction and to choose when to have children….  Should she be allowed to control the timing of births in order to accommodate her career. It’s the same issue that came up in the abortion debate. If women were to have equal opportunities in the workforce, they would need to determine when they would become mothers and to determine the timing of their children. They would also need the flexibility to determine if they even wanted a child in the first place.”

Question:  “So we’ve learned that the decision to legalize abortion in Roe vs. Wade was based on the right of privacy, which the Supreme Court has inferred from the Due Process Clause of the 14th Amendment. Since the Roe decision, a number of other cases have set limits on abortion and abortion clinics. Clarke Forsythe argues that the Supreme Court has failed in regulating abortion and that the issue should be returned to the states. Melissa Murray, by contrast, suggests that the decision in Roe is crucial to giving women the freedom to join the workforce and make decisions about when to have children.

To learn more about his case, visit the National Constitution Center’s Interactive Constitution and Khan Academy’s resources on US Government and Politics.

Religious Liberty is Still Under Attack

jack phillips - with his cakes, masterpiece cake shop (photo credit - matthew staver for the new york times)

(Photo Credit – Matthew Staver for The New York Times)

by Diane Rufino, January 11, 2019

GREAT NEWS !!

But first the bad news:  Religious liberty continues to be in jeopardy in Colorado, the home of Christian baker and cake artist, Jack Phillips, and his Masterpiece Cakeshop.

But here is the good news:  The judicial system has once again ruled in its favor. A federal district court in Denver has ruled that Christian cake artist and baker, Jack Phillips, can proceed in his lawsuit against the State of Colorado for its alleged continued harassment of him on account of his religious beliefs. The district court, in allowing the case to go forward, found there is evidence that there continues to be hostility against Phillips on account of his religious beliefs which is responsible for the unequal treatment against him.

You may remember that Phillips was censured by the state of Colorado (the Colorado Civil Rights Commission) for declining to create a cake for a same-sex couple back in 2012. The couple had asked for a 7-layer cake, representing the colors of the rainbow, with two men in tuxedos being married on top. Phillips declined the request, explaining that the message he would be sending through his design would offend his sincerely and deeply-held religious beliefs. The couple filed a complaint with the Colorado Civil Rights Commission claiming Phillips and the Masterpiece Cakeshop discriminated against them in violation of the state’s public accommodations law, the Colorado Anti-Discrimination Act (CADA). The Commission agreed and ordered the cakeshop owner and his staff to undergo a rigorous re-education program (teaching “tolerance”), as well as to invoke certain serious restrictions on them [by requiring that he bake cakes for same-sex couples (ie, he cannot discriminate for any reason) and requiring that he and his staff record, subject to regular state audits, every customer who requests a custom cake and the reasons when a request is denied]. Phillips appealed but was denied, and then finally appealed the Commission’s decision to the Colorado appellate court. The court upheld the Commission’s finding and decision. Phillips chose to stop creating wedding cakes rather than cave to government coercion. He lost a significant portion of his income and could no longer support the staff he had working for him. He, with help from the pro-First Amendment legal team, Alliance Defending Freedom (ADF), appealed the decision to the Supreme Court.

In June 2018, the Supreme Court issued its opinion in the case (Phillips v. Colorado Civil Rights Commission), ruling that Phillips was wrongfully prosecuted for declining to bake the cake. Rather than address the actual issue of “compelled speech” or religious liberty (see below), the decision rested on the obvious hostility towards religion that clearly motivated the Commission to take action and penalize the Christian baker. For example, in 2014, Commissioner Diann Rice makes the following comment just before denying Phillips’ request to temporarily suspend the commission’s re-education order:

“I would also like to reiterate what we said in…the last meeting [concerning Jack Phillips]. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust… I mean, we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use – to use their religion to hurt others.”

On June 26, 2017, the same day that the U.S. Supreme Court agreed to hear Jack Phillip’s appeal, an attorney, Autumn Scardina, called Masterpiece Cakeshop and requested a birthday cake. During a discussion of the customer’s preferred specifications for the confection, Scardina revealed that she wanted the cake to have a pink interior and a blue exterior. Then she added that the colors were to celebrate her coming out as transgender on her birthday, some years earlier. At that point, Debi Phillips (Jack’s wife, and the co-owner of the cake shop) declined to create the cake because of the Phillips’ belief that gender is biological, and immutable.

Scardina later asked Phillips to design a cake with satanic themes and images—a request that Phillips also declined because of the message the cake would communicate. Scardina then filed a civil rights complaint against Phillips and his Masterpiece Cakeshop with the Colorado Civil Rights Commission, charging discrimination on the basis of gender identity, a protected status under Colorado anti-discrimination law.

Less than a month after the Supreme Court ruled for Phillips in his first case (June 2018), the state of Colorado surprised him by finding probable cause to believe that he violated the CADA by declining to create the requested gender-transition cake. The Commission concluded that the statute includes transgender individuals in its prohibition against discrimination based on gender.

As with his decision not to create a cake celebrating gay pride and same-sex marriage, Phillips’ decision not to make the pink/blue cake which clearly was intended to express a message celebrating Scardina’s transgender status was based on his connection to (and what outsiders might view as his acceptance of) that message and not based on the identity of the customer.

In response to this renewed attack against him, Jack Phillips and his lawyers with Alliance Defending Freedom (ADF) filed their own suit, in the US district court in Denver, against the Colorado Civil Rights Commission and specifically, Aubrey Elenis, the director of the Colorado Civil Rights Division. It was Elenis who issued the finding that that there is “sufficient evidence” to support a claim of discrimination against Phillips. ADF argued that “the state of Colorado is violating Phillips’ First Amendment free exercise of religion rights by continuing to treat him differently than other cake artists and by acting with hostility toward him and his faith.”  District court Judge Wiley Y. Daniel issued a ruling on January 4, concluding that Phillips may proceed with a second lawsuit claiming the state of Colorado is again wrongly prosecuting him. Judge Daniel said there is evidence of unequal treatment against Phillips, given that the state of Colorado, through the Commission, allows other cake artists to decline requests to create cakes “that express messages they deem objectionable and would not express for anyone.” This “disparate treatment,” the court said, “reveals” the state officials’ ongoing “hostility towards Phillips, which is sufficient to establish they are pursuing the discrimination charges against Phillips in bad faith, motivated by Phillips’ religion….” The ruling further added that Phillips “has adequately alleged his speech is being chilled by the credible threat of prosecution.”

A commissioner set to decide the state’s new case against Phillips has publicly referred to him as a ‘hater’ on Twitter, which was just one of several clear indications of the commission’s ongoing bias against him, the bad faith motivating its continued harassment of him, and its outright hostility towards his beliefs.

ADF also argued that Colorado is infringing Phillips’s due process rights, and that the Colorado Anti-Discrimination Commission’s adjudicative process is flawed because the same commissioners act as both accusers and adjudicators in the same case, an arrangement that the Supreme Court condemned in a 2016 decision. There is probably a 14th Amendment challenge as well, alleging arbitrary treatment under its Anti-Discrimination statute.

It is important to understand the issues at the center of this continued hostility towards Jack Phillips. It is not simply the case of one person claiming another violated his civil rights or aggieved him in some way. It is not simply the case of an employer being sued because he offer a job to someone else instead of the minority candidate. This situation is one where the state itself has taken a formal position that anti-discrimination rights and the rights of groups like the LGBT and transgender community are more important than the historic and founding right of religious freedom. Today it may be the state that is trying to take away our religious liberty right, but tomorrow, it may be 30 states, and then the federal government itself. The landmark U.S. Supreme Court ruling in Phillips v. Colorado Civil Rights Commission stemmed from the baker’s refusal, on the basis of his faith, to design a custom cake celebrating a same-sex wedding. The Colorado government then attempted to compel him to do so, and the Colorado Civil Rights Commission treated Phillips with open hostility, even comparing his invocation of sincere religious beliefs to defense of the Holocaust. Additionally, they treated him differently from other cake artists who had declined to design custom cakes because of the images they would have conveyed.

The Supreme Court found that Jack Phillips did not act out of animus (hatred) when he politely declined to make the same-sex couple a cake celebrating gay pride and same-sex marriage [which was not allowed, by the way, in the state of Colorado at the time of the suit (2012); in fact, according to the state constitution, the only marriage recognized in the state was between a man and a woman]. He offered them any other cake he had in the shop and offered to bake them any cake they liked, but he just could not “create” an artistic cake to celebrate same-sex marriage.

Animus and blind intolerance form the crux that makes discrimination so offensive. But that is not what happened in the case of Phillips v. Colorado Civil Rights Commission. It was a case of a man, a Christian, believing the First Amendment protected him in his right to exercise his deeply-held religious beliefs (Free Exercise of Religion) and protected him from being coerced into expressing a viewpoint that goes directly against what he believes (Free Speech and the Right to be free from compelled Speech).

The Colorado Anti-Discrimination Act (or CADA) outlaws discrimination in the area of public services, goods, and accommodations – yet it makes several exceptions for certain groups of people who have particular sensitivities – such as Muslims (can refuse a customer if they feel it offends Allah or the Koran), atheists (obvious; they don’t have to be compelled to make anything with a cross or a bible verse, etc), and African-Americans (don’t have to accept business which they feel discriminates against them, or which represents white supremacy). We all know that discrimination, in many forms, continues to exist in the marketplace. Fashion designers who were outraged over Trump’s election refused to design for our stunning First Lady, Melania (wow, what a stupid decision there!)  Bruce Springsteen and other artists refused to perform concerts for those who hold political views they don’t agree with. Businesses choose states to move to or expand to that are favorable to their political views, and reject those that are unfavorable. The list goes on.

Indeed, over his years as a cake artist, Phillips has declined to create cakes with various messages that violate his faith, including messages that demean LGBT people, express racism, celebrate Halloween, promote marijuana use, and celebrate or support Satan. It was the refusal to create a custom cake for the same-sex couple, Charlie Craig and David Mullins, and the backlash created by the LGBT community, that prompted the Colorado Civil Rights Commission (tasked with reviewing challenges under the Colorado Anti-Discrimination Act) to file a suit against him. As the ADA continues to explain: “Jack serves all customers…But Jack doesn’t create custom cakes that express messages or celebrate events in conflict with his deeply-held beliefs.”  He will tell you the same thing himself.

Apparently, tolerance is not a two-way street.

In addressing the issues presented in Jack Phillip’s case against the Colorado Anti-Discrimination Commission – Phillips v. Colorado Civil Rights Commission (2018 decision), the Supreme Court focused primarily on his claim that CADA, and the Commission itself (ie, the state of Colorado) was forcing or compelling him to engage in speech that he disagreed with.  The creative process whereby Phillips designed a custom cake to represent and mark the particular occasion is a form “expression” or “expressive speech,” which is protected under the First Amendment’s Freedom of Speech provision. Therefore, as his ADF lawyers argued, he cannot be compelled or forced to create a cake that delivers a message that the government demands him to deliver but that he personally opposes.

And the Supreme Court has upheld such a view. In its “compelled speech” rulings, the Supreme Court has protected the right not to be forced to say, do, or create anything expressing a message that one rejects. Its most famous cases are West Virginia v. Barnette (1943) and Wooley v. Maynard (1977). In the Barnette opinion, the Court barred a state from denying Jehovah’s Witnesses the right to attend public schools if they refused to salute the flag, and in the Maynard opinion, it prevented New Hampshire from denying people the right to drive if they refused to display on license plates the state’s libertarian-flavored motto “live free or die.” The justices of the Supreme Court addressed both cases during oral arguments and referenced them in the Court’s opinion as well.

The question, of course, was whether the liberal members of the Supreme Court would agree that cake design constitutes “expression.”  It turned out that all agreed that it does.

The main purpose of having a cake “created,” as opposed to buying a ready-made cake, isn’t to satisfy a sweet tooth or to top off the meal; the main purpose is aesthetic and expressive. That is why they are displayed in such a creative way or in a choreographed fashion at receptions or parties, and that is why they are often the center of a live program (such as the feeding of the cake by the bride and groom to one another), much like a prop in a play.  Luckily, the Court was able to distinguish between simple goods and services (not requiring expression) and services like those offered by Jack in creating a custom cake, which involve expression.

In that case, NC Family co-signed a “friend-of-the-court” brief to the U.S. Supreme Court and, in November 2017, led a North Carolina delegation of concerned citizens (including myself and several of my friends) to Washington, D.C. to show support for religious liberty and Phillips. In June 2018, the Supreme Court ruled 7-2 in Phillips’ favor.

While progressives (like those who sued Phillips in the 2017 case for not baking a gay marriage celebration theme for a same-sex couple, and now those currently suing him, transgenders) believe the First Amendment must remain silent when a person’s views make another feel uncomfortable or hurt their feelings or make them feel undignified, or when a person’s religious beliefs result in what may be viewed as discrimination against a group of persons, the reality is that the First Amendment has no “conditions” on it. And, as the plain language of the Amendment, as well as the Preamble to the Bill of Rights, makes clear, there is no right for the federal government to impose any conditions on it.  Incorporation of the First Amendment on the States (thru the 14th Amendment, or even per the Bill of Rights included in the state constitution) prohibits the state legislature as well from making any law that abridges the right of free speech and the right to exercise one’s religious beliefs. The First Amendment is precisely needed when one’s ideas offend others or when it contradicts the orthodoxies of the reigning social and political majority. In those times, in particular, it protects more than one’s freedom to speak one’s mind; it also guards one’s freedom not to be forced, compelled, or coerced (including by law) to speak the mind of another.

Here is some sobering information:  Since 2014, approximately $9.9 million in grant funding has been collected for the sole purpose to oppose religious liberty and protections for religious freedom.  Welcome to the new America. The grants predominantly come from LGBT groups, backers of the LGBT movement, abortion supporters, and those calling for government-provided contraception coverage. These grantees, in general, hold the position that abortion rights and anti-discrimination laws protecting LGBT individuals are equally important, or more important than religious freedom. Next time you hear the LGBT community demand tolerance, keep this in mind.

Again, welcome to the new America.

Friends, the fight continues.  Either we have the Right to Speak freely or we don’t.  Either we have the Right to Believe as we want and to Freely Exercise our Religion or we don’t. In other words, either we are free or we are not.

I will keep you updated as this new case develops.

 

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References:

NC Family Staff, “Jack Phillips Can Continue His Fight Against Government Harassment,” NC Family Policy Council bulletin, January 11, 2019.  Referenced at:  http://my.ncfamily.org/site/MessageViewer?em_id=5170.0&dlv_id=9031

Robert P. George and Sherif Girgis, “Opinion: First Amendment Wedding Cake,” New York Times, December 4, 2017.  Referenced at:  https://www.nytimes.com/2017/12/04/opinion/first-amendment-wedding-cake.html

“Colorado Loses Bd to Dismiss Cake Artist’s Lawsuit,” Alliance Defending Freedom, January 7, 2019.  Referenced at:  https://www.adflegal.org/detailspages/press-release-details/colorado-loses-bid-to-dismiss-cake-artist-s-lawsuit

“Christian Cake Baker’s Second Lawsuit Can Go Forward, Federal Judge Says,” Catholic News Agency, January 7, 2019.  Referenced at:  https://www.catholicnewsagency.com/news/christian-cake-bakers-second-lawsuit-can-go-forward-federal-judge-says-24315

“Revealed: Colorado Commission Compared Cake Artist to Nazi,” Alliance Defending Freedom, January 12, 2015.  Referenced at:  http://www.adfmedia.org/News/PRDetail/9479

The Politics of Character Assassination and Personal Destruction: Evidence that Evil Has Co-opted the Democratic Party

U.S. Supreme Court nominee Kavanaugh testifies before a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington

(credit:  Reuters photo)

by Diane Rufino, October 8, 2018

Judge Brett Kavanaugh was confirmed as the 114th associate justice to the Supreme Court on Saturday, October 6. It almost didn’t happen. And if everything went the way Democrats planned, it wouldn’t have.

According to Christine Blasey Ford (“Christina Ford”), thirty-six years ago, when she was only 15, she was assaulted by Brett Kavanaugh at a party. He was 17 at the time. She made a statement to the Senate Judiciary Committee explaining her account, but putting her theatrics aside, her naivete, her confusion and timidness and her frequent consults with her many attorneys, the truth is that she presented no evidence, no details, and no witnesses. She apparently only told one person – her husband, Russell Ford. She told him “He could become a justice of the Supreme Court someday.” She said her husband remembered that she said her attacker was Brett Kavanaugh, but she herself doesn’t remember telling him that. She never told her account to anyone else until May 2012, during a couples counseling session. Again, no details were given.

Until July 2018, Ford had never named Brett Kavanaugh as her attacker outside of therapy. In early July 2018, she saw press reports stating that he was on the “short list” of potential Supreme Court nominees and decided to tell her story.  She called her congresswoman, Anna Eshoo (D- Palo Alto) and left a message with her receptionist that someone on the president’s short list of judicial nominees had attacked her. On July 9, after Kavanaugh had become the nominee, Ford received a call from the office of Rep. Eshoo and she proceeded to meet on two occasions with her staff (July 11 and July 13). She mentioned sending a letter to ranking member of the Senate Judiciary Committee, Senator Dianne Feinstein.  In fact, Rep. Eshoo’s office delivered a copy of my letter to Sen. Feinstein’s office on July 30, 2018. The letter included Ford’s name, but she requested that the letter be kept confidential until she had a chance to speak with her in person. Apparently, Senator Feinstein sent a letter in response confirming that she would keep it temporarily in confidence. [I included a copy of that letter at the end of this article]

The rest is history.

Christine Blasey Ford thought not to contact any authorities about her allegations but rather, her first instinct was to get it to Democratic politicians so they could use it to disgrace President Trump’s nomination to the Supreme Court, Judge Kavanaugh and to impugn his character. For thirty-six years, she essentially kept her accusations to herself until the 11th hour, when Kavanaugh made it through to be the president’s choice for the high court. Feinstein sat on that letter and that information until after Kavanaugh did far better in his confirmation hearings than Democrats hoped – when it looked like he would indeed be confirmed.

To be clear about the accusations made by Ford against Brett Kavanaugh:  The one person Ford said was at the party in question not only denied that she was there, but went on to sign a sworn statement, under penalty of perjury, that she: (i) never once met Kavanaugh; (ii) was not at the party; and (iii) the party Ford addressed in her accusations never happened. In fact, she said, Ford’s allegations came as a shock to her. On the other hand, Brett Kavanaugh brought to the Committee a journal that he meticulously kept to document his life (just as his father had done) which provided an air-tight alibi for his whereabouts on the possible evenings of the party.

Ignoring the evidence, Democrats concluded that just because Ms. Ford made accusations of possible sexual misconduct, she must be believed and Kavanaugh must be the attacker. And then when he passionately and forcefully defended his whereabouts, his reputation, and his good name, Democrats went after him again claiming he is an angry man who doesn’t possess the temperament necessary for an associate justice of the Supreme Court.  The made a mockery and a circus out of the Confirmation Hearings.

Let’s face it, no one expected the Democrats to make it easy for Trump to have Kavanaugh confirmed. Senator Chuck Schumer even said as much in a tweet he made moments after Trump announced him as his pick to replace Justice Kennedy, on July 9.  Schumer tweeted: “I will oppose Judge Kavanaugh’s nomination with everything I have, and I hope a bipartisan majority will do the same.”  Schumer, who apparently was spearheading the resistance against Kavanaugh, also was the one who sent out emails to fellow Democrats the night before the confirmation hearings began and who orchestrated to have all those annoying screaming protesters show up to disrupt the proceedings.

As bad as outright partisan delay and obstruction tactics are, which we have seen from the very first day Trump stepped into the White House, I and most Americans are far more concerned with something far more serious — which is the Democrats’ policy of PERSONAL DESTRUCTION and CHARACTER ASSASSINATION when it comes to Republican candidates and judicial nominees.  They spread lies and make up allegations of sexual harassment, without conscience and without impunity…. Why do they do it???  — Because it works.  It almost worked to keep Judge Kavanaugh off the bench. It already worked to make sure law schools won’t hire him. Harvard already announced that he is not welcome back. The politics of PERSONAL DESTRUCTION is something the Democrats have become good at. The politics of spreading lies and instilling fear (including a return to Jim Crow or a return to back alley abortions) is something Democrats are good at. Look what they did to Judge Roy Moore. (You don’t hear anything any more about his accuser). Look what happened to Mitt Romney in 2012 when he ran for president. During that election, Senator Harry Reid accused Mitt Romney, FALSELY, of not paying his taxes in over 10 years. He knew it wasn’t true. After the election, when confronted about his lie and whether he felt remorse for stooping so low, he said no. His response epitomized what the Democratic Party’s politics of personal destruction would become: “It worked didn’t it? He lost, didn’t he?”

The writer for the Stephen Colbert show, Ariel Dumas, tweeted during the Senate vote on Saturday: “Whatever happens, I’m just glad we ruined Brett Kavanaugh’s life.”

The writer’s name should forever be changed to Ariel Dumb-ass.

MSNBC host Mika Brzezkinski mocked Kavanaugh, saying he “raged” and “cried like a baby” while defending himself. This jubilation and mocking of a good and decent man, blemished by unverified accusations, humiliated before all of the country and the world, and fighting to save a reputation he spent an entire life building, is similar to the jihadists celebrating the deaths of thousands of innocent Americans in the wake of 9/11. It says more about who THEY are – the Democrats, the main-stream media, the Hollywood and entertainment industry – than who Brett Kavanaugh is.

These Democrats are not good people. They are not decent people. They are certainly not the kind of people that should be given any power over others. These are people co-opted by the devil; commissioned to do evil.

Remember what Judge Kavanaugh said in his remarks addressing Ford’s accusations?  He said: “I’m never going to get my reputation back. My life is totally and permanently altered.” Later, during that same hearing, an angry Sen. Lindsey Graham told his Democratic colleagues, “You don’t want to find out the truth.  What you want is to destroy this guy’s life.”

The sad thing is that those Democratic Senators, the ones so willing to condemn Kavanaugh merely because Ford made an unverified accusation against him, took an OATH to the US Constitution, which guarantees to each US citizen the right to be presumed innocent, the right to confront his or her accuser, the right to a fair trial by members of his peers. They ignored their oaths and betrayed their allegiance to the Constitution in denying Kavanaugh his fundamental liberty rights. These Democratic Senators are political terrorists and are unfit to serve in government. Their choice of terror is character assassination.

One of the tricks Democrats and other liberals love most is taking something that is as  universally despised as possible, like rape, racism, or police shooting innocent people, and then declaring that they are against it while Republicans are indifferent to it.

  • “You’re against disrespecting the flag?” Then you must want black men to be shot by the police!
  • “You’re not in favor of tearing down historical statues because the owners had slaves?” Then you must hate black people! You must believe slavery was OK.
  • “You don’t believe EVERY rape accusation made against a man?” Then you must be pro-rape or think that women are to be sexualized.

We have Congresswomen, like Mad Maxine Waters, who go around telling people to harass members of Trumps’ team and Trump supporters. “Tell them they aren’t welcome here.” What an unconscionable message to send. What an unconscionable tactic.

These people are taxpayers and citizens of this country; they are entitled to feel comfortable and welcome in their own country.

The actions of Maxine Waters and the obstructionist, duplicitous, actions in general of the Democratic members of government are deeply troubling and let me tell you why…

Government is supposed to be the governing body for the People. It is the creation of the Constitution, adopted by the People, organized in State Conventions. Government serves the States and the People. That’s its sole function. It is NOT to serve itself or a Political Party.

Years ago, before our Revolution, when people were dis-satisfied with their royal governor or with the King and Parliament, they protested; they petitioned, they engaged in peaceful acts of civil disobedience, designed to frustrate or scare those enforcing government policy. The point is that when government is not serving the people as legally authorized to do, it is the PEOPLE who organize and carry out the protests. That is how they put pressure on their government. In our present case, it is GOVERNMENT who is organizing and encouraging the protests – for government’s interests only.  Not for the people’s interests.  What we have now is a Political Party doing anything and everything it can to cause civil and national unrest because it believes it is entitled to the control of government. They absolutely can’t stand the fact that Donald Trump won. And they absolutely refuse to accept it.

If the people want the government to continue to be a GOVERNMENT OF THE PEOPLE, BY THE PEOPLE, and FOR THE PEOPLE, the People are going to have to fight for it and defend it. Otherwise, it will become a Government of the Democratic Party, by the Democratic Party (and its band of indoctrinated useless idiots), for the Democratic Party.

This is the state of our government in DC right now —  It’s no longer the seat of government. It is a battlefield. Democrats feel entitled to power in DC and the election of Donald Trump in 2016 threw them for a loop. That is why we have the insurance policy known as the Russian Collusion scandal; That is why we have talk of instability and impeachment; that is why Democrats have adopted the tactic of Personal Destruction…..

We cannot be fooled by these desperate acts of a desperate political party. We can’t give into their despicable tactics.  We can never, ever allow such vile, uncivil, unethical, morally bankrupt people to control government.  We need to keep their kind off our courts.  We need to talk to our friends and neighbors and family members. We need to get conservatives out to vote. We need to support the #WalkAway movement.  We also need to get those who ordinarily may not be conservative to get out and vote Republican –  to prevent to stop the advancement of the Democratic Party agenda of national destruction.

The tactics employed by the Democratic Party are evil. This conduct, this blackening of the heart, this outright hatred against fellow Americans, this campaign of character assassination, the silencing of speech, the gestapo tactics of fear and violence is not who we are as Americans. It sickens us. It tarnishes our good name and reputation as countrymen. It cheapens our republic. And it must be STOPPED.

As Charlie Kirk, founder of Turning Point USA tweeted: “The sooner conservatives realize that the left will do absolutely anything to win – they will lie, cheat, steal, slander, falsify, attack, demagogue, insult, protest, malign, fabricate, make false accusation, and organize – the sooner we will realized that they will not give us our country back. We must fight for it.”

 

APPENDIX:   Christine Blasey-Ford’s Letter to Senator Dianne Feinstein

July 30 2018

CONFIDENTIAL

Senator Dianne Feinstein

Dear Senator Feinstein;

I am writing with information relevant in evaluating the current nominee to the Supreme Court.

As a constituent, I expect that you will maintain this as confidential until we have further opportunity to speak.

Brett Kavanaugh physically and sexually assaulted me during high school in the early 1980’s. He conducted these acts with the assistance of REDACTED.

Both were one to two years older than me and students at a local private school.

The assault occurred in a suburban Maryland area home at a gathering that included me and four others.

Kavanaugh physically pushed me into a bedroom as I was headed for a bathroom up a short stair well from the living room. They locked the door and played loud music precluding any successful attempt to yell for help.

Kavanaugh was on top of me while laughing with REDACTED, who periodically jumped onto Kavanaugh. They both laughed as Kavanaugh tried to disrobe me in their highly inebriated state. With Kavanaugh’s hand over my mouth I feared he may inadvertently kill me.

From across the room a very drunken REDACTED said mixed words to Kavanaugh ranging from “go for it” to “stop.”

At one point when REDACTED jumped onto the bed the weight on me was substantial. The pile toppled, and the two scrapped with each other. After a few attempts to get away, I was able to take this opportune moment to get up and run across to a hallway bathroom. I locked the bathroom door behind me. Both loudly stumbled down the stair well at which point other persons at the house were talking with them. I exited the bathroom, ran outside of the house and went home.

I have not knowingly seen Kavanaugh since the assault. I did see REDACTED once at the REDACTED where he was extremely uncomfortable seeing me.

I have received medical treatment regarding the assault. On July 6 I notified my local government representative to ask them how to proceed with sharing this information . It is upsetting to discuss sexual assault and its repercussions, yet I felt guilty and compelled as a citizen about the idea of not saying anything.

I am available to speak further should you wish to discuss. I am currently REDACTED and will be in REDACTED.

In confidence, REDACTED.

The Federal Courts Have Become Political, as Judge Kavanaugh’s Confirmation Hearing Made Clear

KAVANAUGH - at Senate Confrrmation Hearing (Sept. 2018)

by Diane Rufino, Sept. 22, 2018

The United States is a constitutional republic.  It is not a democracy, as most people believe. A “republic” is a form of government in which supreme power is held by the people and their elected representatives, and which has an elected president rather than a monarch. It is a “constitutional” republic because it is the constitution which outlines what powers the government has and does not have. It is “constitutional” for another important reason; the constitution protects important individual rights that belong to ALL persons, whether those persons belong to a minority group or whether they happen to be of the majority. The implications of this are critical for our country. The majority may be successful in electing the representatives of their choice and may try to push the agenda that serves them best, but they can never target minority groups to burden their rights, liberties, privileges, or property.

As you can see, the Constitution is the cornerstone of our society; it forms the very foundation of our government system and the foundation of our Rule of Law. It defines the division of government power between the federal government and the states, and then the state and local governments have their authority.

The Constitution is the People’s document. How can that be when I just explained that how it defines the powers of government?  It is the People’s document because above all else, it sets limits on the power and the reach of government on the rights and in the lives of Americans. It establishes boundaries on government. Individual Liberty is greatest when government is most properly restrained.

After all, Individual Liberty is the great ideal on which our country was founded.

The problem with this ideal though, is in the diminishing role the Constitution holds and the transitory nature that too many judges attribute to it (“a living, breathing document”). The Constitution can’t mean what it what it was meant to mean…  That’s too archaic. It is a product of a different time, with different values.  The Constitution must mean what judges and justices infer it means, according to the changing times and values. This is the argument of liberal and progressive judges.

To compound this problem further is the fact that the federal government now holds a monopoly over the meaning and intent of the Constitution.  It can legislate as it wishes; it can enforce as it wishes, and god forbid either branch is challenged, well then the federal courts will usually support them. The federal judiciary is the branch which has given itself the supreme power to interpret the Constitution and to require all states and localities to abide by its opinions, even when that opinion is delivered by a single judge, by 2 members of a 3-member panel of judges, or by a 5-4 split on the Supreme Court.  (The point I’m making is that often an “opinion” is the result of a single judge).  As the name implies, the federal judiciary is a branch of the federal government. It is not an impartial tribunal for the various parties to a suit, including the States, the Church, individuals, minority groups, etc. It is a tribunal whose members are political appointees nominated by US presidents and confirmed by the political members of the US Senate. They are creatures of the federal government, beholden first and foremost to the system that put them on the seat of the highest courts of the land.

Does anyone really believe that, in their opinions, the federal courts are not going to tend to side with the federal government?

The truth is that the federal government is virtually free to assume any and all powers it wants or thinks it needs; conversely, it is also free to ignore powers it wants to ignore. And we’ve certainly seen this trend. Over the years, and it began almost immediately (in 1803), there has been a constant and steady transfer of government power from the States and from the People to the federal government. The government, once of limited powers, has now swelled to a government of consolidated and unlimited power.

To make matters even worse, the federal judiciary has become a third political branch, making the monopoly completely political in nature. Politics, as we know, invites aggression and division. It is not a unifying force but one of division.

The federal courts have become political, rather than apolitical, which is what they were intended to be. Interpretation of the Constitution should be, and MUST ALWAYS BE, free from politics. Interpretation is really simple; its black and white, and rarely involves shades of gray.  Those of us who have been involved in the reading of a will or navigating the fine print of a credit card, or even re-negotiating the terms of a contract, understand what interpretation is all about.  The terms speak for themselves. The provisions, including how they are written, with commas, semi-commas, and sub-paragraphs, speak to the intent.

In short, contract law governs the role of a judge when it comes to the interpretation of the Constitution; the document is interpreted according to its plain words, the meaning of those words at the time they were written and agreed upon, and any contemporaneous documents or writings that help explain the Constitution’s meaning and intent.

The contemporaneous documents that might be (and should be) included in a judge’s exercise of interpretation include The Federalist Papers (because they were written to explain the Constitution and because they were written, in large part, by James Madison, the primary author of the Constitution and Alexander Hamilton, who also attended the Convention in 1787, they were assurances given to the States on which they relied in their ratifying conventions) and any debates in the Ratifying Conventions (because those “understandings” became part of the “meeting of the minds” on which the States agreed to adopt the Constitution). There is NO role of a federal judge to interpret the Constitution applying modern values or norms or to interpret it through the lens of a political agenda.

And yet they do. In fact, there is a whole population of judges who are referred to as “progressive” or “liberal” judges and who hold the opinion that the US Constitution is not firm in meaning but rather is a “living, breathing document” to be molded and transformed by smart lawyers (considering themselves, of course, to be far smarter than we ordinary citizens) according to the dictates of politics and evolving social norms and values.  It is those types of lawyers, unfortunately, who have the power and authority to define those social norms and values. As we all know, social norms and values are political.

The Constitution is a social compact, which is important to understand. A social compact is an agreement among the members of a society on how they will organize and govern themselves. They organize and form a common government in order to establish order, to share common services, to cooperate for mutual benefit, and for protection. For example, a typical social compact requires some sacrificing of individual freedom for state protection. In other words, in an ordered society, individuals can’t go around taking the law into their own hands. The people of our founding generation (the people of the original states), acting through duly-organized state conventions, ratified the Constitution. In doing so, the States joined themselves in a federated union, agreeing to transfer some of their sovereign government powers to the common (or federal) government and agreeing to abide by its governance. So, it is the States which are the parties to the Constitution. The Constitution provides a mechanism – the only legal mechanism – by which those who are parties to its agreement (ie, the States) can amend it in order to bring it up to date with current norms and values, and that is the amendment process, which is outlined in Article V.  The options (two of them) are the only way the Constitution can legally be “updated” to reflect modern times. And that makes sense because again, the Constitution is a social compact and it is the People, in their state conventions, who make and amend that compact. It is THEY who determine how THEY want their society to be organized and governed and by which values and principles.  It is not the government to make that determination. Government has no such power; rather it is tasked to strictly interpret the Constitution. It is tasked to preserve the document that the People have drafted and adopted for their governance. Government has no power to amend it by back channels such as the federal bench or by policy or executive order because the government is not a party to the compact but rather, its creation.

Things are becoming worse and worse for our federal courts; they are increasingly becoming more political and becoming more aggressive in their roles. The reason they are becoming politicized is because liberals and progressives (Democrats) are increasingly turning to the federal courts to seek the progress that they cannot achieve through the ordinary democratic process (elections and lawmaking).

That is why what we saw a few weeks ago on TV with the Senate Judiciary Committee questioning Judge Brett Kavanaugh troubled us so thoroughly.  The Confirmation Hearing was an embarrassing, a humiliating, political circus. Democratic Senators not only organized and staged a despicable protest of Kavanaugh – carried out by numerous androgynous-looking individuals who screamed and essentially carried on like petulant children – but they engaged in outright character assassination. Democrats were proud of their conduct.  Senator Lindsey Graham articulated their conduct best when he told them (paraphrasing): “You were never going to vote for him. Why don’t you just do what you were going to instead of making a mockery of this hearing and doing everything you can to destroy the character of this fine man, and in front of his wife and children no less. Just vote NO, like you intended to.”

The Democrats want nothing more than to get promises from Kavanaugh that he will use his position as a Supreme Court justice to further their agenda to get rid of President Trump. They seek nothing more than to co-opt a single seat on the bench of the highest court in the land to undo the 2016 election – the legal and constitutional election by the people. The Democrats, in every public hearing, in every instance before a microphone, in every interview, with every national crisis, and with every act of presidential power taken by President Trump, use the occasion to condemn, criticize, mock, and humiliate him… to misconstrue his actions, to accuse him of acting erratically, and to call for his impeachment.

They are a bunch of low-lives who hold no moral ground to accuse anyone of being imperfect. How dare they impugn the character of someone like Brett Kavanaugh when they are, collectively, nothing more than a bunch of tax cheats, law-breakers, criminal solicitors, race baiters, hustlers, sexual predators, and constitutional illiterates. If Democrats are going to turn every confirmation of a Republican candidate into a very public “high-tech lynching” (a term used by Clarence Thomas in his own confirmation hearing), then I agree with those who argue that confirmation hearings should be kept closed and out of the eyes and ears of the American people. No one needs to be reminded of how low and vile and despicable and unconscionable and dishonest and uncivil our Democratic lawmakers have become.

I found Kavanaugh’s Senate Confirmation hearings to be absolutely sickening. Now, more than ever, I believe Democrats to be the enemy of our country and nothing more than parasites and a disease (a plague) on our good and honorable nation. They do NOT represent the values and conduct of the overwhelming majority of Americans. Most Americans conduct themselves mindful that they reflect upon the character and morality and decency of our great land.

While we are on this subject, let’s  not forget WHY Democrats conduct themselves as they do. Personally, I believe it’s because they are acting out of pure desperation and futility. They are a party of a derailed and un-American message; they are losing resonance with the American citizen (yet picking up new followers — illegals, foreigners, social misfits, transgenders, psychotics, financially-dependent sloths, ignoranuses…..) We are witnessing the desperate acts of the leaders of a desperate political party.

Let’s not forget WHY they follow the same sordid, sickening template every single time, which is to spread lies about Republican candidates and nominees and to make up allegations of sexual harassment …. Because it works. The politics of PERSONAL DESTRUCTION is something the Democrats have become good at. The politics of spreading lies and instilling fear (including a return to Jim Crow and a return to back-alley abortions) is something Democrats are good at. Look what it did to Judge Roy Moore. (You don’t hear anything any more about his accuser). Look what happened to Mitt Romney in 2012 when he ran for president. During that election, Harry Reid accused Mitt Romney, FALSELY, of not paying his taxes in over 10 years. He knew it wasn’t true. After the election, when confronted about his lie and whether he felt remorse for stooping so low, he said no. His response epitomized what the Democratic Party’s politics of personal destruction would become: “It worked didn’t it? He lost, didn’t he?”

We cannot fall for their immoral, unethical tricks.  They detest the one thing that matters most to a conservative – Truth. They will twist it and ignore it all day, all night, all week-end long, and twice on Sunday, if they think it will advance their agenda. They know no scruples and they know no decency. Again, they are parasites. They are our modern-day plague.

 

References:

Senator Lindsey Graham during the Senate Confirmation Hearings –  https://www.youtube.com/watch?v=WunFJhgKwig

Looks Like Whoopi Goldberg Put On Her “Thinking Cap” Again

WHOOPI GOLDBERG - Pussy Hat

by Diane Rufino, June 28, 2018

On this morning’s airing of “The View” (the show with cackling, often deranged, liberal women), Whoopi Goldberg addressed Supreme Court Anthony Kennedy’s resignation and her concerns over President Trump’s chance to pick a replacement for him. Apparently that news sent her into a frenzy. Using the opportunity to advocate for abortion rights (of which a woman has complete control over her right to terminate for any reason, and at any time, the life growing inside her), she launched into a tirade: “Get out of my vagina! If you take away my right away from me, I got a problem with that…..  You don’t want people to take your guns?  So get out of my behind. Get out of my vagina. Get Out.”

Let’s do a reality check, Whoops, shall we?  The Bill of Rights EXPRESSLY recognizes the right to have and bear arms in the Second Amendment. It’s historical roots are deep and firmly grounded. Let me look where the Bill of Rights recognizes the right of a woman to have complete control over her reproductive capability….  Hold on…  I’m looking…    Wait…  I’m still looking…..

It’s not there. A liberal (VERY LIBERAL, and socially progressive) Supreme Court pulled some legal magic and slight of hand to find that right. And let’s not kid ourselves. The facts and history behind the case (including commentary by Justice Sandra Day O’Connor and later by Justice Ruth Bader Ginsburg) show that the decision was made essentially for two reasons: (1) to give women the flexibility they need to compete as equals to men in the workforce (a pesky pregnancy or an unwanted child can certainly get in the way!); and (2) to deal with all the unwanted pregnancies that would overwhelm our social programs.  The right to an abortion wasn’t so much about a right as it was about a solution.

Whoopi has nothing to fear from a conservative court.  A woman’s right to an abortion will not be taken away. It is too firmly entrenched in our society, much like the Miranda Warning is and much like the concept of the “Wall of Separation” is, both of which are legal fictions. And it is a very effective solution to an obvious social problem, albeit a heinous and unconscionable one. But what a conservative court might do is question the wisdom, the immorality, and the inhumanity of the broad right granted to women. A future court might address the conflict in such a policy when our very founding documents identify the right to life as one of man’s greatest inalienable rights. How do we reconcile that core American ideal with the right of a woman (and then a doctor) to terminate what is clearly a human life?  A conservative court might, one day, put strict limits on the right to an abortion so that two lives enjoy the rights guaranteed here in America.

The whole of politics doesn’t have to come down to the security of a woman’s unfettered and unlimited so-called right to terminate a life growing inside her. And it shouldn’t.  And I would like to think that women are capable of engaging in the political arena on issues that are far more important. They used to care about issues such as education, taxes, jobs, safety; they used to care about the issues that made it easier to raise their families, own a home, have job security, send their kids to college, save money, and be able to retire comfortably.

Whoopi has a limited understanding of the Constitution, which I suppose is a whole lot better than most Democrats, who have no understanding of it. I’m glad the organizers of the Women’s March in DC last January encouraged marchers to wear those funky Vagina caps (“pussy hats”). Putting those bright pink caps on their heads covered up the real pink matter that usually does one’s thinking – the brain. And it was totally fitting that they did so because the women (if you can even call some of them that) at that march DON’T think with their brains. Instead, they are only capable of thinking with their vaginas.

Whoopi showed us once again how true that is.

Whoopi attended the Women’s March in DC. She wore a pussy hat. And even more, she wore a shirt announcing how “nasty” she is.

Wow, women sure have progressed over the years.

OBERGEFELL v. HODGES: The Very Real Tendency of Federal Courts to Render Unconstitutional Opinions

THOMAS JEFFERSON - with reading glasses

(Photo Credit – FreakingNews.com)

by Diane Rufino, March 26, 2018

We are all used to the accusations that a certain Executive Action is unconstitutional or a federal law is unconstitutional, and we are used to challenges to them in federal court. We remember how the progressive federal appellate courts of the 11th and 9th circuits struck down President Trump’s proposed travel ban as an unconstitutional exercise of discretion. And we here in North Carolina are still stunned and outraged at the 4th Circuit for usurping our state’s right to a democratic form of government (Article IV, Section 4 of the US Constitution) and our reserved powers under the 10th amendment when it struck down our duly-enacted Voter ID Law.

We all understand that unconstitutional actions by those branches must be recognized and addressed; they must be struck down and thus not enforceable.

What we don’t hear are accusations that certain Supreme Court, and other federal court decisions, are unconstitutional. The truth is that they, just like the actions of the other ranches, are capable of exceeding proper authority and presenting an abuse of power that amounts to federal tyranny.

Why do we just accept their decisions? Why is it that we simply tell ourselves and others: “Well, the Court has decided. It has handed down its opinion.” And then we surrender our protests to that decision, even though we KNOW it is an unconstitutional exercise of judicial power.

Thomas Jefferson recognized the potential of the federal judiciary for profound abuses of power even as early as 1801. In a letter he wrote to his friend, Adamantios Coray, on October 31, 1823, he warned: “At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.”

How do we know for sure that certain federal court opinions are unconstitutional? Sometimes the justices are truthful and tell us so in their dissenting opinions. And sometimes they explain in detail why it is so.

I wrote an article a few days ago about just such a case, the Obergefell v. Hodges case (2015) – the gay marriage decision. Four justices out of the nine wrote dissenting opinions explaining exactly why the majority opinion (5-4) was unconstitutional. So, instead of focusing on the majority opinion in a court decision, as I almost always do, in this article, I focus on the dissenting opinions.

I think it’s important for people to know – to understand – that federal court opinions are often incorrectly decided and moreover, are often decided by exercising power and discretion that they DO NOT HAVE.

The article, “OBERGEFELL v. HODGES: The Scathing Dissent by Chief Justice John Roberts Explains Why the Majority Opinion Was an Abuse of Judicial Power Under the US Constitution,” is posted on my blogsite:  https://forloveofgodandcountry.com/2018/03/23/obergefell-v-hodges-the-scathing-dissent-by-chief-justice-john-roberts-explains-why-the-majority-opinion-was-an-abuse-of-judicial-power-under-the-us-constitution/