by Diane Rufino, February 21, 2019

I wrote the following Model Bill in support of the various grassroots organizations I volunteer with, in support of the Pro-Life Movement, and in recognition of the incompetence of the US Supreme Court in deciding the Roe v. Wade (1973) case which recognized the broad right of a woman to an abortion.  Right now, according to Roe, the only thing preventing a woman from aborting her full-term unborn baby are any interests the state may choose to exercise in allowing the pregnancy to continue (after viability) and in the life of the unborn. Recently, several states have declined to exercise any “state interests” in a woman’s pregnancy so that she can have an abortion at any point in her pregnancy, including up until delivery. In other words, in these states, a woman’s right to an abortion is so broad that it includes the killing of her living unborn baby.  No other “fundamental right” recognized in our US Bill of Rights is without limitations (that is, limitations based on compelling state interests).

In no moral society can we accept the notion that a woman’s right to control her reproduction and fertility (ie, her right to an abortion) is broad enough to kill her baby, which is an independent life.

I shared this Model Bill with my state representatives in the North Carolina General Assembly, all of whom share my viewpoint. They are busy submitting various bills to limit abortions in the state but none have addressed the issue at the core of the abortion debate, which is that at some point a fetus biologically and morally becomes a living human being – a new life.  If the state legislature defines life to include an unborn baby (at a stage to be supported medically), then it has inherent, inalienable rights that the US Constitution, the North Carolina constitution, and our laws are bound to respect.

I hope other states will take this approach and pass common-sense legislation to define life so that the killing fields resulting from a woman’s all-too-expansive right to an abortion will end.

RESOLUTION To DEFINE “LIFE” THROUGH LEGISLATION

“Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people.”  [Justice Antonin Scalia, in an interview]

Whereas, the right to an abortion was articulated by the Supreme Court in 1973, in the infamous case, Roe v. Wade  which addressed a challenge to a Texas statue criminalizing abortion. Roe’s attorneys argued that women have a right to an abortion under her right to privacy, including her right to control her reproductive health and to determine when to reproduce. [Roe v. Wade, 410 U.S. 113 (1973)];

Whereas, the Court has recognized that a general right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. However, it cited cases that found ‘the roots of that right’ in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, as well as in the penumbras of the Bill of Rights. One such case was Griswold v Connecticut; (1965) which involved a challenge to a Connecticut criminal statute that prohibited married couples from using contraceptives and made their doctors liable for aiding and abetting; [Griswold v. Connecticut, 381 U.S. 479 (1965)];

Whereas, the Court concluded in Roe v. Wade that the inherent right of privacy (which the Court articulated in the case of Griswold v. Connecticut) was broad enough to include the right of a woman to control her fertility and her ability to reproduce (ie, to control what happens with and inside her womb). In other words, the Court concluded that a woman’s right to an abortion was a fundamental right;

Whereas, the Supreme Court in Roe concluded that a woman’s right to an abortion was not absolute. Rather it ‘must be considered against important state interests in regulation.’ Yet, it continued, the right of privacy could be limited only if the laws were ‘narrowly drawn to express only the legitimate state interests at stake’ (the test the Supreme Court uses to review laws that violate or burden a fundamental right, which is “Strict Scrutiny”). Because a woman’s right to an abortion was a fundamental right, only a compelling state interest could justify such an anti-abortion statute. And the Court found that there were indeed some compelling state interests, such as safeguarding health, in maintaining medical standards, and in protecting potential life. The question became at what point do the state interests come into play so as to justify the burden on the woman’s right to an abortion;

Whereas, the Supreme Court, “applying present medical knowledge,” determined that the state’s interest in the mother’s health became compelling at approximately the end of the first trimester. Until that point, women experienced less mortality from abortion than childbirth (ibid 163). After that time, a state could regulate the abortion procedure to protect maternal health, such as by requiring that abortion providers be qualified and facilities be appropriate. The state’s interest in potential life became ‘compelling’ at ‘viability’ (which is the point when a fetus has a chance of surviving outside the mother’s womb; medical community puts viability at 24 weeks). At that point, the state could even prevent abortion, except when it is necessary to preserve the life or health of the mother;

Whereas, in light of the above analysis, the Court articulated a “Trimester Framework” or “Trimester Approach” as a bright-line rule to guide the states. As explained above, the framework is essentially a legal balancing test that weighs the privacy interests of the mother against the interests of the state in order to explain when abortion rights were strongest. The “Trimester Framework” or “Trimester Approach” can be summed up as follows:

(i)     During the first trimester of pregnancy, when an abortion was considered a safer procedure than childbirth, the decision on whether to abort must be left exclusively to the mother and her attending physician. (Therefore, any state or federal regulation that interfered with the right to have an abortion would be presumptively unconstitutional).

(ii)     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.

(iii)     For the stage subsequent to viability, the State may (if it chooses), in promoting its interest in the potentiality of human life, regulate, and even prevent, abortion except where it is necessary, subject to appropriate medical judgement, for the preservation of the life or health of the mother;

Whereas, while the Court noted that the government had legitimate interests in regulating abortion, it concentrated more intently on how an unwanted pregnancy affected a woman’s life. The Court identified a range of harm, including ‘specific and direct harm’ to her health, ‘a distressful life and future’ from additional children, ‘psychological harm’, health implications from caring for children, distress from bearing an unwanted child, financial stress, coercion from family, and the stigma of unwed motherhood. Consequently, the Court concluded, the right of privacy, ‘founded in the Fourteenth Amendment’s concept of personal liberty,’ was ‘broad enough to encompass a woman’s decision whether or not to terminate her pregnancy’;

Whereas, until the decision in Roe v Wade, women in the United States did not have a constitutional right to an abortion. Rather, each state had the ability to regulate abortion within its borders. The US Congress could not enact abortion legislation because the federal government lacked the constitutional authority to do so (it was not yet a recognized right);

Whereas, Roe v Wade reached the Supreme Court as part of a growing movement in the US to recognize and liberalize abortion law; arguments in favor of abortion rights centered on women’s equality, public health, overpopulation, sexual freedom, and feminism;

Whereas, the opinion in Roe was based upon what abortion advocates wanted women to be able to do, not what they believed women were truly capable of;

Whereas, the country soon found out what women were capable of, with respect to the unborn. They sought abortions to terminate the life of the unborn they either found too inconvenient to continue carrying or they didn’t want to care for when born;

Whereas, abortion rights have had certain horrific and unconscionable of unintended consequences, including the offending of our national conscience, alienating our country from the protection of God,  the suffering of clinic workers (what they are forced to witness), the suffering (psychologically and emotionally) of the women who abort their babies, and the death of countless innocent lives;

Whereas, the recent passage of “late-term abortion” laws in several states, removing state interests in preserving the pregnancy up until delivery, has shocked our national conscience and has caused society to renew its discussion and debate on abortion and what rights do women actually have or what rights they actually should have;

Whereas, the Court went out of its way not to refer to the unborn fetus as ‘a “person” because to do so would bring the unborn under the protection of the Fourteenth Amendment;

Whereas, the Court acknowledged that the Constitution provides no definition of “person” or “personhood” and then came to its own conclusion that “person’ was used in the Amendment in a way that suggested that it did not include the unborn – that it referred to someone outside the womb, able to walk around….”;

Whereas, the Court ignored historical precedent, especially at the time of the adoption of the Fourteenth Amendment, that “personhood” and “life” were considered synonymous; and that a fetus was considered a “life” or a “person” per the very wording of various state abortion statues (criminal statutes) at the time of “quickening” or earlier;

Whereas, in fact, when the Fourteenth Amendment was adopted in 1868, the individual 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.’ (it is clear that the word ‘person’ referred to the fetus”);

Whereas, at the time the Fourteenth Amendment was adopted, twenty‐three states and six territories referred to the fetus as a ‘child’ in their statutes proscribing abortion;

Whereas, at the time the Fourteenth Amendment was adopted, at least twenty‐eight jurisdictions labeled abortion as an ‘offense against the person’ or an equivalent criminal classification;

Whereas, at the time the Fourteenth Amendment was adopted, 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;

Whereas, at the time the Fourteenth Amendment was adopted, ten states (nine of which had ratified the Fourteenth Amendment) considered abortion to be either manslaughter, assault with intent to murder, or murder (a murder or manslaughter charge legally requires the victim to be considered a “person”);

Whereas, the only plausible explanation for the state laws and policies above is that the legislatures considered the mother and child to be equal in their personhood;

Whereas, 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 (“quickening”; animation; when the mother could first feel fetal movement) and appeared recognizably human (formation), which occurred approximately 40 days after fertilization;

Whereas, although abortion performed before ‘quickening’ had been legal at the nation’s founding, the American Medical Association, starting in the 1850s, promoted the criminalization of abortion in all cases, except to save the mother’s life;

Whereas, even by the mid-nineteenth century, courts and states alike, were increasingly rejecting the “quickening” standard as scientifically obsolete and replacing it with “fertilization”;

Whereas, besides ignoring historical tradition, the Supreme Court further ignored its own Constitutional/Fourteenth Amendment jurisprudence (established by Snyder v. Massachusetts in 1934) in determining which fundamental rights are incorporated on the States through the Fourteenth Amendment’s Due Process Clause. The question the Court must ask is whether the asserted right “is so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and the Court is obligated to use the time period of the Amendment’s adoption to make that determination. [Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)];

Whereas, the fact that a majority of the States at the time of the Fourteenth Amendment, and especially those that ratified it, had restrictions on abortions for at least a century should have been strong indication to the Court 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, pg. 105 of the opinion];

Whereas, the very ‘fundamental’ right of privacy, on which the Court grounded the its abortion decision, was itself a court-created concept. [As the Court acknowledged, ‘The Constitution does not explicitly mention any right of privacy. . . .’];

Whereas, layman’s dictionaries at the time of the adoption of the Fourteenth Amendment treated the concepts of humanity and personhood interchangeably. (That is “life” = “pershonhood”);

Whereas, William Blackstone’s Commentaries on the Laws of England, a treatise that had profound influence on legal thinking and which was used in American law schools, was relied on by the Supreme Court, and continues to be cited even today in Supreme Court decisions (cited at least 10-12 times each year.) 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.” [Blackstone’s Commentaries];

Whereas, a look back through history shows that there were no laws to specifically protect the unborn 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;

Whereas, at the time the Fourteenth Amendment was adopted, Americans, state lawmakers, and government officials understood personhood to include the unborn, just as Blackstone defined it, and therefore a historical analysis shows that society in 1868 viewed personhood and life in much the same way that pro-lifers today view it;

Whereas, in his dissenting opinion in Roe v. Wade, Justice Byron White argued: “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. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.” [Roe v. Wade];

Whereas, Justice White continued 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….. The 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. 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..” [Roe v. Wade];

Whereas, in his dissenting opinion in Roe, Justice William Rehnquist argued: “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.’ 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.” [Roe v. Wade];;

Whereas, it is clear that the fundamental mis-conception at the heart of the Roe case was that a fetus can never be a “life” and hence could never come under the protection of the Fourteenth Amendment which speaks to rights of “persons.” In other words, the case was premised on an erroneous assumption;

Whereas, had the Supreme Court had looked at the “life” or the unborn/fetus as opposed to its “viability”; that is, if it had made the proper assumption that a fetus, at least at a certain point, becomes a living being, and hence a “life,” then the Constitution and our laws provide protection of that unborn, including observance of its fundamental rights;

Whereas, the Declaration of Independence 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….”;

Whereas, the minute an individual is created and blessed with life, 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;

Whereas, had the Supreme Court made the proper assumption in Roe, that a fetus, at least at a certain point, becomes a living being, and hence a “life,” then that unborn would be considered a “person” for purposes of the Fourteenth Amendment, and would therefore be recognized as having inherent and fundamental rights of its own for which our Constitution must recognize and protect;

Whereas, the Fourteenth Amendment reads: “… 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’;

And whereas, had the Supreme Court recognized life and hence personhood in a fetus (again, at least at a certain point), then it’s analysis in Roe v. Wade would not have been “Woman’s Fundamental Right to an Abortion” vs. State Interest (if the state even wanted to exercise an interest) in preserving the life of the unborn” but rather the correct one which would have been “Woman’s Fundamental Right to an Abortion” vs. “The Unborn’s Right to Life”;

Whereas, once an unborn fetus is recognized as an independent life, a woman’s right to have an abortion will not be broad enough to include the termination of a pregnancy that contains a living fetus. In other words, a woman will no longer have the unfettered right to abort her unborn, kill it, or otherwise dispose of it;

Whereas, had “life” been defined by federal statute or state statute, then countless living unborn babies would not have had to be sacrificed at the alter of a woman’s broad right to an abortion.

THEREFORE, in consideration of all of the above, especially in light of the failings of the Roe Court to reconcile the asserted right of abortion with the US Constitution and Supreme Court jurisprudence,      the Coastal Carolina Taxpayers Association       strongly advises that the General Assembly pass legislation defining a fetus as a “life,” and hence a “person,” at a medically-appropriate point so that it can and will be respected as having fundamental rights and protected under the US Constitution, the North Carolina Constitution, and our laws.
References:

Diane Rufino, “Why Can’t Women be Both Pro-Choice and Pro-Life? It’s Possible With Common-Sense Limitations on Abortion,” For Love of God and Country Blog, February 1, 2019.  Referenced at:  https://forloveofgodandcountry.com/2019/02/01/why-cant-women-be-both-pro-choice-and-pro-life-its-possible-with-common-sense-limitations-on-abortions/

Revelations from Norma McCorvey (aka, Jane Roe) of Roe v. Wade –  https://www.liveaction.org/news/7-powerful-quotes-from-jane-roe-of-roe-v-wade/

Roe v. Wade  [410 U.S. 113 (1973)] full text of majority opinion –  https://caselaw.findlaw.com/us-supreme-court/410/113.html

Griswold v. Connecticut, 381 U.S. 479 (1965), summary –  https://www.oyez.org/cases/1964/496

Merle H Weiner, “Roe v. Wade Case (US),” Oxford Constitutional Law –  http://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e564    [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)].

Justice William Rehnquist’s dissenting opinion in Roe v. Wade –  http://landmarkcases.c-span.org/pdf/Roe_Rehnquist_Dissent.pdf

Justice Byron White’s dissenting opinion in Roe v. Wade –  https://en.wikisource.org/wiki/Roe_v._Wade/Dissent_White

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.]