Constitutional Persons:An Exchange on Abortion

FIRST THINGS ^ | JAN 2003 | Robert H. Bork & Nathan Schlueter

[jwalsh07]

I think you're right about the public square. I know you're right about the damage Roe v Wade has inflicted. A look at Chuck Shumer foaming at the mouth is evidence of that.

So, pulling on my running shoes, you would think that overturning Roe and returning the issue to the states is the proper course of action?

Every day Mom's all across America are viewing 3 and 4D images of their babies in vitro. Minds are being changed and positions are being modified.

[Torie]

I am not sure. Overturning a long standing Scotus decision as wrong should have some consensus behind it. Absent that, it might further poison the water, and would be a disaster politically to the Pubbies. It won't happen in any event. What is more realistic, and what I would favor, is cutting back the progency of Roe first, to let the states work out the law regarding second and third trimester abortions. As a pracical matter, few states are going to ban first trimester abortions in any event, particularly if most keep them legal. Banning morning after pills and the like is even more dead in the water.

[ALS]

[Dajjal]

Paramount Human Life Amendment Bump

[tpaine]

Bork bump

[MHGinTN]

Norma McCorvey is trying to get back before the SCOTUS to inform the court of the false testimonies and false data presented during the Roe hearing. Is there a chance the court would reverse itself since their first decision was based on proven lies and proven falsified data? Is there a chance the court will even hear the matter?... If not, doesn't that say something damning about the SCOTUS that 42,000,000 planned deaths and three deacdes based on lies is of no concern to the court?

[Remedy]

>>>Is there a chance the court would reverse itself since their first decision was based on proven lies and proven falsified data? Is there a chance the court will even hear the matter?<<<

How Not To Overturn Roe v. Wade

The unstated premise of those who have adopted this strategy is that the Justices do not understand the nature of abortion, and that if they are forced to confront the scientific and medical facts about the conception and development of the unborn child, they will be compelled to reconsider Roe v. Wade and hold that the unborn child is a constitutional person. To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will. That premise is mistaken. Every member of the Court understands what an abortion is. If there was any doubt about this before, the Court’s decision in Stenberg v. Carhart two years ago, striking down Nebraska’s partial-birth abortion law, should have laid that doubt to rest. The majority opinion’s cold and clinical description of various abortion methods betrays no ignorance of the nature of abortion. The Court understands that the purpose and effect of an abortion is to kill an unborn (and, in some instances, a partially born) child. Whatever reservations some members of the Carhart majority may have about the morality of abortion in general or the partial-birth technique in particular, those reservations have not affected their collective judgment that women need abortion to be legal in order for them to be full and equal members of American society. It is that judgment, and not any misunderstanding of what happens in an abortion, that is the source of our present predicament, as even a casual perusal of the Court’s opinion in Casey reaffirming Roe v. Wade would disclose.

[Remedy]

Overturning Supreme Court Decisions with Constitutional Amendments

The Supreme Court's power of judicial review allows the court the power of interpreting the Constitution and determining whether any act of the Congress, the executive, or the state governments is in violation of the Constitution. Four of the twenty-seven amendments to the Constitution have overturned Supreme Court decisions. Two other proposed but unratified amendments also sought to overturn decisions of the Supreme Court.

Proposing an amendment to the Constitution of the United States with respect to the right to life. (Introduced in House)

HJ 20 IH

107th CONGRESS

1st Session

H. J. RES. 20

Proposing an amendment to the Constitution of the United States with respect to the right to life.

IN THE HOUSE OF REPRESENTATIVES

February 14, 2001

Mr. OBERSTAR (for himself, Mr. AKIN, Mr. ARMEY, Mr. BAKER, Mr. BARCIA, Mr. BARTLETT of Maryland, Mr. DEMINT, Mr. GREEN of Wisconsin, Ms. HART, Mr. HAYES, Mr. HULSHOF, Mr. LIPINSKI, Mr. LUCAS of Kentucky, Mr. PICKERING, Mr. SHIMKUS, Mr. SHOWS, Mr. TANCREDO, and Mr. TERRY) introduced the following joint resolution; which was referred to the Committee on the Judiciary

---

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States with respect to the right to life.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, to be valid only if ratified by the legislatures of three-fourths of the several States within seven years after the date of final passage of this joint resolution:

ARTICLE--

`SECTION 1. With respect to the right to life, the word `person' as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States applies to all human beings irrespective of age, health, function, or condition of dependency, including their unborn offspring at every stage of their biological development.

`SECTION 2. No unborn person shall be deprived of life by any person: Provided, however, That nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother.

`SECTION 3. The Congress and the several States shall have power to enforce this article by appropriate legislation.'.

[unspun]

I wish I were a speed reader. ;-`

[Torie]

SCOTUS has long since abandoned the Blackman medical jargon in his opinion. That has no state of play at present. It is sort of like the sociology jargon in Brown v. Board of Education.

[tpaine]

'the word `person´ as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States applies to all human beings irrespective of age, health, function, or condition of dependency, including their unborn offspring at every stage of their biological development.'
-remedy-


"It is wrong to play word games with the text of the Constitution. Reading the word "person" to encompass all human life and thus to make abortion illegal is exactly like arguing that the Thirteenth Amendment's prohibition of "involuntary servitude" makes the military draft unconstitutional."

[MHGinTN]

The word 'person' applies to whom the sCOTUS says it applies and the sCOTUS has decided that the word will not apply to individual human beings prior to their birth/exit from a womb. When a case comes before the court that deals with a harm done to an unborn individual human being, if the court cannot focus the ruling upon the 'property' of the woman, it will be interesting to see how they weasel out of recognizing the individual humanity of the preborn. [justice O'Connor refused to address the humanity of the individuals killed in Carhardt's abortuary practice, yet she let it be known that Nebraska murder statutes would apply, if the state rewrote their law banning partial birth infanticide to include any exception an attending licensed medical person might want to apply ... particularly interesting since Nebraska doesn't actually regulate their abortuaries, if memory serves.]

[tpaine]

Exactly. - If such early abortion is to be seen as murder, due process, and equal protection must be observed.

-- Every suspected case of fertilized egg/embryo/first trimester 'murder' would require a trial by jury, an impossible, ludicrous result of bad, unenforcable law.

[MHGinTN]

You do have a way of twisting what a person posts, tpaine.

[MHGinTN]

FYI:

By James Jefferson
Associated Press Writer
Friday, May 11, 2001; 6:31 a.m. EDT

LITTLE ROCK -- The state Supreme Court ruled that a fetus is a person in a wrongful-death lawsuit brought by a man whose wife and unborn child died during birth procedures.

In reversing a lower court on Thursday, the Supreme Court cited a 1999 law that changed the state's criminal code to include a living fetus of 12 weeks gestation in the definition of a person.

The case stemmed from the Dec. 13, 1995, death of Evangeline Aka and her unborn son about 30 hours after she was admitted to the hospital so labor could be induced.

Aka's husband, Philip, claimed the defendants were medically negligent in unnecessarily inducing his wife's labor, failing to discontinue the procedure, failing to perform a caesarean section, failing to resuscitate his wife or the unborn baby and failing to obtain informed consent.

"Given this amended definition of 'person,' the Legislature plainly affords protection to unborn viable fetuses," Chief Justice W. H. "Dub" Arnold wrote for the court.

A circuit judge ruled in early 1999 against Aka's claims, citing a Supreme Court ruling that a fetus was not a person in wrongful-death actions.

Later that year, the Legislature approved a law specifying that an unborn fetus could be considered a person for some purposes in criminal law.

"The relevance of the Legislature's response, by statutorily defining person in the criminal context to include a fetus, cannot be understated," Arnold wrote.

In a dissenting opinion, Justice Robert L. Brown said he agreed with the lower court ruling that viable fetuses are not considered persons for purposes of wrongful-death cases.

"The majority's reasoning is inconsistent and extremely hard to justify," Brown said. "A decision of this magnitude requires clarity and direction, and not a patchwork quilt woven from disparate statutes, constitutional provisions and Supreme Court decisions."

Brown said he believed the public policy shift didn't occur until this year, with the passage of another law specifically amending the wrongful-death statute to include a viable fetus in the definition of a person.

The act was approved April 4 and won't go into effect until Aug. 14.

Arkansas Supreme Court:
http://courts.state.ar.us/courts/sc.html

© Copyright 2001 The Associated Press

[MHGinTN]

ping, FYI

[RobbyS]

Well, one CAN deplore the uses to which the 14th Amendment has been put, but since the Courts have already intervened, the Courts must be used to disintangle the mess. The amendment process serves only one purpose and that it to ratify a consensus. That is why the 19th Amendment did not work and why it took a hundred years for the 14th Amendment to be applied for the purpose it was intended, which was to protect blacks from white majorities at the polls and white mobs in the streets. All along the Congress had the authority to force the states to abolish those laws that violated the plain intent of the Amendment, and Congress would not, nor would a majority of the states.

[RobbyS]

Oops! 18th Amendment, of course--although I WILL point out that it took more than a generation for women to use the suffrage in proportionate numbers.

[MHGinTN]

Points well made and duly noted.

[Remedy]

>>>first trimester 'murder' would require a trial by jury, an impossible, ludicrous result of bad, unenforcable law.<<<

State Homicide Laws That Recognize Unborn Victims

The Unborn Victims of Violence Act (H.R. 503) recognizes unborn children as victims of federally prohibited crimes of violence. If someone injures or kills an unborn child while committing a violent federal crime against a pregnant woman, the assailant will be charged with a separate offense on behalf of the unborn child. The bill simply puts federal law behind the common sense recognition that when a criminal attacks a pregnant woman, and injures or kills her unborn child, he has claimed two human victims. The House passed H.R. 503 / vote: 252-172 April 26, 2001

Homicide Based on the Killing of an Unborn Child -- In this essay, Alan Wasserstrom surveys the history of laws which prosecute feticide--the destruction of a human fetus--as homicide.