Tuesday, October 04, 2005

Ending the Holocaust, Phase 2

With the nomination of Harriet Miers to fill the second and possibly final Supreme Court vacancy of George Bush's presidency, those willing to stand up for the right to life need to begin phase 2 of ending America's Holocaust. Whether the new Chief Justice, John Roberts, turns out to be the kind of justice that will defend life remains to be seen. Bush's new nomination is also a complete unknown to the vast majority of the people that have been fighting for an end to the holocaust. The pro-life movement, which has been largely responsible for the electoral victories of all Republican presidents since Roe Vs Wade in 1973, may have been betrayed, or fooled, or ignored once again. Without recounting all of the failures of past Republican presidents to appoint the proper sort of justice to the Supreme Court (as that is already being done quite effectively in the blogosphere and by other conservative columnists), we must forge ahead. While the battle for the Supreme Court is not yet over, we must look to the second of three steps in ending the American tragedy of legalized murder.

For those that have not yet thought ahead to step 2, it is quite simply, a constitutional amendment defining the beginning of life, or, to satisfy the legal hacks that wrote the Roe vs Wade decision, we must define, through constitutional amendment, a “person”. One may ask, “why do we need to do that if we have won the court?”. The answer is fairly simple. First, we do not know that we have the court. Much remains to be seen. Indeed, assuming Roberts and Miers (if she is confirmed) both vote to overturn Roe, we are still lacking one vote on the court. (1) Second, even if we had the court today, there is no way of knowing WHY they would overturn Roe. As we have seen (2), there are those on the pro-life side arguing that abortion should be a state's issue, not federal. If that were the reason for overturning Roe, abortion would still be alive and well in many states. That is simply not good enough.

One may ask why we need to define “person”, as it is used in the constitution. Let us review the 14th amendment, which states in part:

“1. 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.”

In its decision on Roe vs Wade(3), the Supreme Court held up the 14th amendment as one of the factors in determining its position, both from the angle of protecting the “privacy” of the “mother”, as well as the “potentiality of human life”. Let us gloss over the double-speak that has the court referring to the abortionists' client as “mother”, yet the “potential life” as not worth protecting.


A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, [410 U.S. 113, 157] for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. 51 On the other hand, the appellee conceded on reargument 52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in the Apportionment Clause, Art. I, 2, cl. 3; 53 in the Migration and Importation provision, Art. I, 9, cl. 1; in the Emolument Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.”

Let us move on though, as dissecting the idiocy and wickedness of the Roe decision is not the purpose here. Instead let us focus on the arguments of the court, and how the court has challenged the citizens of the United States to respond.


This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

The [410 U.S. 113, 154] Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute.”

Here the court begins to show its reasoning, (if you wish to call it that), stating that the state has an interest (and presumably a right) to “protect” women by regulating (read: taking away choices) medical standards. Yet at some point, which the court later claims is not its right to determine, the “potential life” has some undefined rights as well.
Now, it is safe to jump past more astoundingly bad reasoning, and right to the decision's own summary:


To summarize and to repeat:

1. 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 Fourteenth 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 [410 U.S. 113, 165] 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.

2.The State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.“

Essentially, the court had abdicated responsibility to define a “person” as protected by the 14th amendment. The decision went through an interesting history of abortion, and a history of medical and social opinion as to the beginning of life. Perhaps the court should have focused instead, on what science tells us about the beginning of life. But they didn't. And so, the responsibility falls back on the citizens, those that allow, by active participation or tacit complicity, the United States government to rule as it does.

(1) factcheck.org
(2) Freelanders