This Thing We Call “Sovereignty”

DECLARATION OF INDEPENDENCE - early draft

by Diane Rufino, February 20, 2019

On September 3, 1783, representatives from the American states, Benjamin Franklin, John Adams, and John Jay, and a representative of King George III signed the Treaty of Paris to officially end the American Revolutionary War against Great Britain. The first Article of that Treaty acknowledged:

“His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free SOVEREIGN and Independent States; that he treats with them as such, and for himself his Heirs & Successors, relinquishes all claims to the Government, Propriety, and Territorial Rights of the same and every Part thereof.”

In the Declaration of Independence, the document that  preceded the Treaty, the document which “proclaimed to a candid world” that the States were separating themselves from the political bonds with Great Britain (seceding from the British Empire) and declaring themselves independent, our Founders articulated the government theory that justified their act of secession and their independence. It was premised on the doctrine of INDIVIDUAL SOVEREIGNTY. This doctrine was articled by these words:

“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……… it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security….”

In other words, the individual was born to be free and meant to live free. He has rights so foundational, so fundamental, so integral to his humanity, that they can never ever be taken away from him, or violated or burdened by government. In fact, as the Declaration says, governments are instituted for the primary purpose of securing the rights of the individual (while also establishing a peaceful ordered society for individuals to so enjoy their freedom). The people would always be greater than government.  Governments would always be subordinate to the will of the people. The rights of the individual would always be the priority in the American States. Governments would always be considered “temporary,” to exist at the will of the people and only to the extent that it protects their rights, keeps them safe, and extends their happiness. Government would never have any right or power to pursue or secure its own permanent existence. (Too bad Abraham Lincoln didn’t understand this founding principle; over 650.,000 lives could have been spared)

The first constitution of the “united States,” establishing the first union, was the Articles of Confederation. Article II of that document declared that “Each state retains its SOVEREIGHTY, freedom and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”  This provision would be the historical precursor to our Tenth Amendment.

The Tenth Amendment essentially states the very same thing; it just doesn’t include the phrase “each state retains its sovereignty.” But that fact is certainly implied.  Government powers reside with a sovereign state or entity.

This union, as we all know, was dissolved when each state convened a state convention to consider the ratification of the US Constitution of 1787 and therefore to form “a more perfect union.”  In other words, each state, as the Declaration described for the course of action with respect to Great Britain, “dissolved the political bonds” holding it together with other states.  Several states had issues with the new Constitution, skeptical of the new government so formed and the powers it was delegated, and so their ratifications were “conditioned” on several things: on amendments, on a Bill of Rights, and even on the fidelity of the government (its ability to remain limited). Four states that stand out in particular are New York, Virginia, Rhode Island, and Massachusetts. The first to ratify conditionally was Massachusetts. The state wanted a Bill of Rights to be included (it reserved the right to consider its ratification null and void should one not have been added). The first three states, however, took their conditioned stance more forcefully; they included “Resumption Clauses” in their ratification documents.  That is, they reserved the right, as SOVEREIGN states, to resume all the powers they had delegated in the Constitution.

Virginia included this provision in its ratification:  “Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will.”

New York included this provision:  ““That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same……”

And Rhode Island included this provision:  “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: That the rights of the States respectively to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same……..”

Why did these states reserve the right to resume the (limited) government powers that were delegated by the Constitution to the new common government?  Because they were SOVEREIGNS with inherent rights to rule.

So what does this word “Sovereign” mean?  What is “Sovereignty”?  Many people don’t exactly know what the these terms mean and their significance.

Sovereignty is inextricably linked to the supreme right to govern and the supreme power to govern.

Government in the United States requires the understanding of three terms: Self-government, sovereignty, and social compact.

Sovereignty is the power to rule; to make laws and to govern; a sovereign is a country, government, or entity that has supreme power or authority.  The individual is a sovereign. It is a self-evident truth that individuals are endowed by their Creator with certain unalienable Rights, that among them are Life, Liberty and the pursuit of Happiness.  “Unalienable” or “inalienable” means “incapable of being taken away.” Just as individuals, as sovereigns, have certain inalienable rights, other sovereigns (such as countries, governments, entities) have rights that can never be divested or taken away. That is what New York, Virginia, and Rhode Island articulated and re-asserted in their Resumption Clauses.

Individual Sovereignty is the inherent and independent right to do all that is necessary to govern oneself. In the United States, the People are sovereign. In fact, only the individual is truly sovereign, because only the people, and not government, have inherent rights to life, liberty, and property, along with the right to protect and preserve it.

Governments govern people, and without people, there would be no need for government. In other words, the sovereign individual precedes government. Government has to get its powers (its authority to make law and to enforce laws) from somewhere and it’s the people who assign it those powers. They delegate the rights they themselves originally were vested with to govern themselves and their property to the government; dominion (jurisdiction) and power originate from the individual.

In the United States, we enjoy self-government, or at least, we used to. Increasingly government has taken it upon itself (at the federal, state, and local level) to tell us what we can and can’t do. When our country was founded, the people were trusted with self-government; they were, for the most part, moral and upstanding people who valued family and decency. They worked, provided for themselves, raised their families right, and therefore required minimal laws to constrain their conduct. But we all know what happened to the fabric of society and the character of too many people in our country; and so, more and more laws were required.

But let’s get back to government and the government philosophy on which our country was founded.   Government power originates from the people, for the people – “of the people, by the people, and for the people.” The Declaration of Independence tells us this.  Government arises out of social compact. John Locke tells us this, and being that our Declaration was written with Locke’s philosophy in mind, our Declaration also tells us this.  The federal government was established by the social compact known as the US Constitution. The federal government is its “creation” – an agent to serve the states. State governments are established by the compacts that are the state governments.

John Locke’s philosophy of government is based on nature and natural law (Natural Law is referenced in the first paragraph of the Declaration of Independence).  Each person is an individual, of course. God created each of us with rights in our personhood; he didn’t create us with “collective rights.” Those would be “civil rights.” Long ago, human beings migrated around, to find land to farm, to provide food for themselves, to herd their animals, to provide shelter, to be near a ready food source, etc. They existed, pretty much, as individuals. But then as they populated, more and more individuals came to occupy the same area.  And that was OK because man is a social creature.

Because man is a social creature, he forms together into communities. And in order that communities run smoothly and common services be provided to protect everyone’s rights and property, governments are instituted. And so, individuals delegate some of their sovereign power of self-defense and self-preservation to a government. That is why the bulk of government is always supposed to be closest to the individual, where it is most responsible and most accountable. Our rights and liberties are most protected when people have the frequent opportunity to see their elected officials and look them in the eye, and when those officials see a personal story behind acts of legislation, etc.

This is exactly what our Declaration of Independence tells us about our individual sovereignty. In the first paragraph, we are told that our sovereignty is based on Natural Law and God’s Law – “to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” The only rightful power our government has is the power that the People – by the consent of the governed and according to the precise language and intent of our Constitution – have temporarily delegated to it. In that grant of power, in a system based on the Sovereignty of the Individual, there is always a mechanism to take that power back. That is why the Declaration explicitly states that the People have the right to “alter or abolish” their government (when it becomes destructive of its aims). In fact, that right is so important and so fundamental, it is listed with the other inherent rights that individuals possess. In other words, what the Declaration is saying is that the People of the “united States” have the right to reclaim the sovereign power that they temporarily delegated to that government to govern and protect their liberties.

Again, this is because our system was premised on the Sovereignty of the Individual.

When government exceeds its powers, it takes powers away from other sovereigns that hold those powers – which are the States and the People (recognized or re-stated in the Tenth and Ninth Amendments, respectively).  Abuse of power is necessarily a usurpation of the rights of others. When government exceeds its powers, we are told that our only right is at the ballot box. This would indicate that the people are no longer recognized as sovereigns.  When government exceeds its powers, states have been told they must comply or they are coerced into complying. This would indicate that states are no longer viewed as sovereigns. But nothing has changed constitutionally to warrant this change in outlook or in government philosophy. The Declaration tells us, and sovereignty dictates, that individuals always have the right to resume their inherent rights and powers to govern. This, in plain terms, means that individuals always have the inherent right to secede (or abolish their bonds with government, including abolishing government completely) or to refuse to comply with an illegitimate, immoral, or arbitrary law (as Rosa Parks did). Similarly, states have the inherent right to resume their powers to govern within their borders and over their jurisdiction.  That resumption can take several forms, including secession (permanent, perhaps even violent), or nullification (peaceful; exercising the right not to recognize or enforce actions of the federal government that are in abuse of its powers).

Nullification and Secession are two rightful and reserved remedies reserved to the parties under compact theory.

If individuals or states no longer have a mechanism to take it back, then they are no longer sovereigns. If the government tells We the People that we don’t have the right, or the power, to “alter or abolish” our government for abuse or tyranny, then we have already lost our freedom and our system of government is no longer based on the sovereignty of the individual. If the States are told that they no longer have a recognized right of secession, then they are nothing more than geographical boundaries in one consolidated land, under the dominion and subjugation of the federal government.

Without the sovereignty that our country was founded on, the unique character of our government system – the premise that our rights come from God and that government is obligated to secure them, and that because we are such sovereigns, we can “alter and abolish” our government – becomes now merely a myth; it’s folklore…. “There once was a time……”  The fact is that government has taken over; IT has become the supreme sovereign. It has become so powerful that it has extinguished the sovereignty of the People and the States, or at least has whittled the reserved powers of the State down to nothing (token sovereignty).  We, in the United States, now enjoy our rights only to the extent that government allows us to. That’s the reality. House Speaker Nancy Pelosi recently threatened that Democrats will one day soon use the Emergency Powers Act to confiscate guns. And Senator Elizabeth Warren wants a near confiscatory income tax on the very wealthy. What the US Congress can’t, or won’t do, the federal courts will…  and they do.

If sovereignty is stripped and if rights and powers are permitted only to the extent that government allows, how are we any different from any other country where government is supreme over the individual?

In 1868, the Supreme Court ruled that there is no right to secession. (Texas v. White). It concluded that when the Constitution was signed, a permanent, perpetual Union was created. (However, Justice Salmon Chase did acknowledge that secession might be permitted if ALL states decided together to dissolve the Constitution and the Union or if the people revolted… In other words, only if people are willing to lay down their lives might they be permitted to wrestle sovereign power from the government). In a letter he wrote in 2006, Justice Scalia also opined that there is no right of secession. And in 1958, the Supreme Court ruled that States have no right to try to remind the federal government of its constitutional limits and to prevent its encroachments upon the rights of the people through nullification efforts (Cooper v. Aaron).

So, next time you hear people profess the opinion that the Supreme Court has given the final word on efforts to reclaim sovereign power, ask yourself: “Does it have the authority to permanently deny sovereignty?”  It does not.  It doesn’t even have the authority to temporarily deny it.  Sovereignty was not surrendered permanently in the creation of the US Constitution.

Nullification is an essential first step in reclaiming power that the federal government has unilaterally and inappropriately usurped from the states and from We the People. No one wants to exercise the right of secession. I’d like to think we would all prefer to remain in a harmonious relationship with our fellow states, if that can be possible.

 

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New York City Does it Again !

ABORTION - A Happy Day in Hell for New York City

(Photo Credit:  from YouTube – “A Happy Day in Hell – the new New York abortion law”)

by Diane Rufino, February 6, 2019

New York has done it yet again !

The wicked place known as New York City, is once again at the center of controversy.

—  First, its strict gun-control law (no guns, even those lawfully-owned, obtained, and registered, are allowed out of the owner’s home, unless on those rare occasions he or she is traveling to and from one of 7 shooting ranges) has been challenged as violating the Second Amendment. The Supreme Court has agreed to hear the case in its fall session (New York State Rifle and Pistol Association v. City of New York).

—  Second, the state legislature passed, and Governor Andrew Cuomo signed into law on the 46th anniversary of Roe. v. Wade (January 22, 2019), a late-term abortion bill that is would permit a woman to kill her unborn child up until the time of its birth for essentially any reason at all.

—  And now, a New York City ordinance that was adopted last year which regulates how therapists can counsel patients who have unwanted same-sex attractions or have gender identity issues (you won’t believe which approach they are forcing therapists to take!) is being challenged in court. The Alliance Defending Freedom (ADF), the same legal advocacy group who represented Christian baker Jack Phillips in his case against the state of Colorado for punishing him and shutting down his cake-design business because he declined to design a cake for a same-sex couple on genuinely and strongly-held religious grounds, has agreed to take the case against New York City.

Yes, folks, we’re not in Kansas anymore !!!   (A metaphor, of course, because New York has never been Kansas).  I’m wondering if New York City can even be recognizable anymore as being part of this free nation called The United States of America. How can one part of the country deny citizens so many traditional, and constitutionally recognized rights?

The government doesn’t belong in a person’s bedroom, it doesn’t belong in the conversation between parent and child, it doesn’t belong in one’s head as one forms the conscience he or she hopes to live by, it doesn’t belong by the jewelry box where an individual decides whether to wear a cross necklace to school or to work, it doesn’t belong in a hospital forcing a doctor who believes in the sanctity of life to perform an abortion, it doesn’t belong in the decisions of a business owner forcing him or her to design and create messages that offend his or her sincerely and firmly-held religious beliefs, it doesn’t belong in the abortion clinic preventing a doctor from giving his patient as much information and access to information as possible to help her chose life instead of the death of her unborn, and it doesn’t belong in a therapist’s office.

But a new New York City ordinance puts the government squarely in that position, censoring what therapists are free to say as they work with their patients. The New York City Council adopted this ordinance in 2018 making it illegal, under threat of substantial fines, for any person to provide paid services that help people work through unwanted same-sex attractions or confusion over gender identity.  Under this law, a counselor is free to help a patient explore, develop, or gain comfort with same-sex attractions and to do the same with almost any gender identity imaginable. But, the law prohibits a counselor from assisting patients who wish to reduce same-sex attraction or achieve comfort in the gender identity that matches their physical body. The fines include $1,000 for the first violation, $5,000 for the second, and $10,000 for any violations after that.

This new ordinance is an incredibly, and frustratingly, one-sided law.

The disturbing truth is that many states have already adopted similar laws censoring what therapists can say when working with minors. Such a law is termed “Law Banning Conversion Therapy.” Specially, such a law imposes upon a therapist or psychotherapist, a complete ban on any therapy efforts intended or designed to counsel a patient against changing their sexual orientation or their gender or expression of gender. They can only counsel such a patient into changing their sexual orientation or their gender or going forward with a particular expression of gender (whatever that means). Again, up until this point, all the states that have passed such a ban on conversion therapy have done so specifically when the patient is a minor. These states include:  New York, New Jersey, Delaware, Maryland, Connecticut, Rhode Island, New Hampshire, Vermont, California, Oregon, Washington, Nevada, New Mexico, Illinois, Hawaii, and the District of Columbia.  Certain counties in Florida, Ohio, Wisconsin, and Pennsylvania have adopted such bans, and one county in Arizona has done so.

All of the bans mentioned above, again, are limited to such therapy for minors. But New York City’s ban, adopted in 2018, extends to adults as well.

New York City’s new ordinance is, by far, the most far-reaching and intrusive of conversion therapy bans, as it reaches in to censor what can be said in an intensely private and voluntary counseling conversation between two adults. It harms therapists because it chills their right of free speech and the right to provide their patients an objective course of treatment. And it harms patients by taking away from them options that are consistent with their religious beliefs. Often patients will seek out particular therapists because they want guidance that is consistent with those beliefs. For example, Christians may seek out Christian therapists.

New York City’s law dares to substitute the government’s preferred course of treatment with that of the trained professional. It is government coercion.

For these very reasons, Dr. Dovid Schwartz, a licensed psychotherapist and member of the Lubavitcher Orthodox Jewish Community in Brooklyn, has decided to challenge this ordinance. Alliance Defending Freedom (ADF) has filed a lawsuit on his behalf.

The ADF explains on its website:

Dr. Schwartz regularly serves patients who want his help changing or overcoming same-sex attraction. The majority of Dr. Schwartz’s clients share his faith and often desire to experience opposite-sex attraction so they can marry, form a natural family, and live consistently with their Orthodox Jewish faith. These are beliefs about human sexuality and the possibility of change that are shared not only by many Jews, but also by many Christians and Muslims.

The government must respect their freedom to discuss those beliefs, and pursue those goals.

That discussion is exactly what Dr. Schwartz offers his patients. In his psychotherapeutic services, Dr. Schwartz simply listens to his patients, talks with them, and offers suggestions. And as a result of Dr. Schwartz’s services, a number of patients have been able to work through their issues and have gone on happily to pursue and achieve their personal goals.

The ADF continues:

Dr. Schwartz should not be forced, in the course of those very private discussions, to be used by the government as a tool to impose the viewpoint on human sexuality that the New York City Council prefers. And, even beyond that, the government has no business telling people what personal goals they can or can’t pursue. If a man wants to marry a woman and have a family, that’s his choice. The government cannot keep him from pursuing that goal simply because they disagree with it.

The bottom line is that all Americans, secular and religious, deserve the right to private conversations with the trusted counselors they choose, free from government censorship.

The people of New York City may want their overpopulated, bustling metropolitan city to become a freak show and a modern-day Sodom and Gomorrah, but government has no right to prefer it or to encourage or facilitate it.

 

References:

Sarah Kramer, “New York City is Censuring Conversations Between Psychologists and Their Patients,” Alliance Defending Freedom, January 24, 2019.  Referenced at:  https://adflegal.org/detailspages/blog-details/allianceedge/2019/01/24/how-new-york-city-is-censoring-conversations-between-psychologists-and-their-patients?sourcecode=10003253&id=3

Rev. V. Gene Robinson, “Homosexuality in Sodom and Gomorrah,” On Faith, December 8, 2010.  Referenced at:  https://www.onfaith.co/onfaith/2010/12/08/homosexuality-in-sodom-and-gomorrah/9051

New York Reproductive Health Act of 2019, full text –  https://www.news10.com/news/local-news/full-text-read-the-full-text-of-the-reproductive-heath-act/1718439748

Mark Joseph Stern, “The Supreme Court is Preparing to Make Every State’s Gun Laws Look Like Texas’,” SLATE, January 22, 2019.  Referenced at:  https://slate.com/news-and-politics/2019/01/supreme-court-new-york-gun-case-heller.html

New York State Rifle and Pistol Association v. City of New York, Opinion of the Appeals Court for the 2nd District (2018)  –  https://caselaw.findlaw.com/us-2nd-circuit/1890169.html

New York State Rifle and Pistol Association v. City of New York, Opinion of the US District Court for the Southern District of New York (2015) –  https://cases.justia.com/federal/district-courts/new-york/nysdce/1:2013cv02115/409843/56/0.pdf?ts=1423217864

Adam Liptak, “Supreme Court Will Review New York City Gun Law,” New York Times, Jan. 22, 2019.  Referenced at:  https://www.nytimes.com/2019/01/22/us/politics/supreme-court-guns-nyc-license.html

Photo Credit:  from YouTube – “A Happy Day in Hell – the new New York abortion law” –  https://www.youtube.com/watch?v=kjN1_NTCDpY

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President Trump Takes Issue with Democrats at the SOTU and Announces Plan to Protect the Lives of the Unborn

RIGHT TO LIFE - Texas A&M Health Science Center

(Photo Credit: Texas A&M Health Science Center)

by Diane Rufino, February 6, 2019

Thank You, President Trump for taking the initiative to acknowledge the humanity in an unborn child and thank you for pointing out the inhumanity of those would-be mothers who choose to abort the life inside them.

Last night in his State of the Union Address, Trump announced that he will ask Congress for a bill outlawing abortions when the fetus has developed to the point when it can feel pain.

He said:

“I am proud to be the first President to include in my budget a plan for nationwide paid family leave, so that every new parent has the chance to bond with their newborn child.

There could be no greater contrast to the beautiful image of a mother holding her infant child than the chilling displays our nation saw in recent days. Lawmakers in New York cheered with delight upon the passage of legislation that would allow a baby to be ripped from the mother’s womb moments from birth. These are living, feeling, beautiful babies…. And then, we had the case of the Governor of Virginia where he stated he would execute a baby after birth.

To defend the dignity of every person, I am asking Congress to pass legislation to prohibit the late-term abortion of children who can feel pain in the mother’s womb. “

House Speaker Nancy Pelosi (from the hedonist state of California) and Senator Chuck Schumer (from the killing fields of New York) called a border wall to prevent criminals and drugs from flooding into our communities “immoral” but these same Democratic leaders and Democrats everywhere think it’s perfectly moral to ignore the humanity of the life growing inside a woman’s womb to the point where that life can be sacrificed as it passes through the birth canal. It is about time we acknowledge that human beings create life in a woman’s womb, and it’s a woman’s role in this thing we call nature and the circle of life. Indeed it is the greatest of all God’s blessings for her to be able to do so. The absolute moral thing to do is to respect this miracle and to respect life, even if that life cannot yet function independently. We were all dependent on a mother at one time – both in her womb and then for a couple years after that.

Trump is bold. Trump is just. Trump is right. A woman’s right to control her reproduction is not a complete right… It is not broad enough – it CANNOT be broad enough – to include the right to kill another human being, again no matter how young and helpless that human being is.

 

References:
Full transcript, President Trump’s State of the Union Address (2019), White House – https://www.whitehouse.gov/briefings-statements/remarks-president-trump-state-union-address-2/

White House Briefings, 2019 State of the Union Address (Feb. 5, 2019) – https://www.whitehouse.gov/sotu/

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Why Can’t Women be Both Pro-Choice AND Pro-Life? It is 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.

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Reflections on Martin Luther King Jr. Day

Rev Martin Luther King

by Diane Rufino, January 21, 2019

We remember Martin Luther King Jr. and his contributions to the Civil Rights movement today. I just heard that many members of the King family and the Kennedy family are requesting that an investigation be opened (re-opened) into the assassinations of JFK, MLK Jr, RFK, and Malcolm X. It would be about time we finally learned the truth about why these men were deemed too powerful or too controversial for their time and who arranged their assassinations. Anyway, when I taught government and politics, I stressed the writings of Martin Luther King. To phrase the civil rights movement for blacks as cashing in on a promissory note that had been denied them for too long was brilliant and perfect. I think his letters from a Birmingham jail are the most compelling. I read them and I wonder why it took so long (100 years) for society to treat black people with the dignity and equality they deserve. Equality was enshrined, by letter and spirit, in the Reconstruction era amendments (13th, 14th, and 15th), adopted in the years shortly after the end of the War of Northern Aggression, but it took a man like Martin Luther King Jr, with his charisma and passion, his intellect, his articulation of man’s injustice to his fellow man, and his call for peaceful protest that finally convinced national leaders to end the segregation that instinctively taught and reinforced that persons of different skin color were inherently different and unequal.

I’m glad God blessed Martin Luther King with the voice and the messaging, and the passion and fortitude to lead his people to the promised land. I just pray that we move forward from this current era where certain people and groups believe that everything you need to know about a person can be gleaned from his or her skin color. If people truly believe that, then much of MLK’s legacy is already forgotten.

On this Martin Luther King Jr. Day, I hope everyone will read the following excerpt from King’s letter from a Birmingham jail to understand the depths to which blacks were mistreated and burdened with second-class treatment. He wrote the letter, as an “open letter” to those who condemned his methods in protesting racial injustice. Reverend King and his Southern Christian Leadership Conference (SCLC) coordinated with the Alabama Christian Movement for Human Rights (ACMHR) to address the gross racial injustice in Birmingham, perhaps the most racially segregated city in the country, and together, on April 3, 1963, they organized marches and sit-ins against racism and racial segregation. They were, of course, non-violent. King’s movement was always about peace protest. On April 10, a circuit court judge issued a blanket injunction against “parading, demonstrating, boycotting, trespassing and picketing,” but King and the leaders of the ACMHR announced they would ignore the ruling. On April 12, King was arrested and throw in jail. What he didn’t expect was the reaction by various members of the clergy. While they agreed that social injustice existed, they argued that King and his movement were “extreme” and that the battle against racial segregation and the violation of voting rights should be fought solely in the courts and not the streets. On April 16, King wrote a long letter addressing those members of the clergy to defend his tactics and his movement of peaceful protest and civil disobedience.

Reverend King wrote:

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have never yet engaged in a direct-action movement that was “well timed” according to the timetable of those who have not suffered unduly from the disease of segregation. For years now I have heard the word “wait.” It rings in the ear of every Negro with a piercing familiarity. This “wait” has almost always meant “never.” It has been a tranquilizing thalidomide, relieving the emotional stress for a moment, only to give birth to an ill-formed infant of frustration. We must come to see with the distinguished jurist of yesterday that “justice too long delayed is justice denied.” We have waited for more than three hundred and forty years for our God-given and constitutional rights. The nations of Asia and Africa are moving with jetlike speed toward the goal of political independence, and we still creep at horse-and-buggy pace toward the gaining of a cup of coffee at a lunch counter. I guess it is easy for those who have never felt the stinging darts of segregation to say “wait.” But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick, brutalize, and even kill your black brothers and sisters with impunity; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she cannot go to the public amusement park that has just been advertised on television, and see tears welling up in her little eyes when she is told that Funtown is closed to colored children, and see the depressing clouds of inferiority begin to form in her little mental sky, and see her begin to distort her little personality by unconsciously developing a bitterness toward white people; when you have to concoct an answer for a five-year-old son asking in agonizing pathos, “Daddy, why do white people treat colored people so mean?”; when you take a cross-country drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “nigger” and your middle name becomes “boy” (however old you are) and your last name becomes “John,” and when your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never knowing what to expect next, and plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodyness” — then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over and men are no longer willing to be plunged into an abyss of injustice where they experience the bleakness of corroding despair. I hope, sirs, you can understand our legitimate and unavoidable impatience.

YOU express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask, “How can you advocate breaking some laws and obeying others?” The answer is found in the fact that there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that “An unjust law is no law at all.”

Now, what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. To use the words of Martin Buber, the great Jewish philosopher, segregation substitutes an “I – it” relationship for the “I – thou” relationship and ends up relegating persons to the status of things. So segregation is not only politically, economically, and sociologically unsound, but it is morally wrong and sinful. Paul Tillich has said that sin is separation. Isn’t segregation an existential expression of man’s tragic separation, an expression of his awful estrangement, his terrible sinfulness? So I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong.

Let us turn to a more concrete example of just and unjust laws. An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal. On the other hand, a just law is a code that a majority compels a minority to follow, and that it is willing to follow itself. This is sameness made legal.

Let me give another explanation. An unjust law is a code inflicted upon a minority which that minority had no part in enacting or creating because it did not have the unhampered right to vote. Who can say that the legislature of Alabama which set up the segregation laws was democratically elected? Throughout the state of Alabama all types of conniving methods are used to prevent Negroes from becoming registered voters, and there are some counties without a single Negro registered to vote, despite the fact that the Negroes constitute a majority of the population. Can any law set up in such a state be considered democratically structured?

Of course, there is nothing new about this kind of civil disobedience. It was seen sublimely in the refusal of Shadrach, Meshach, and Abednego to obey the laws of Nebuchadnezzar because a higher moral law was involved. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks before submitting to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience.

We can never forget that everything Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. But I am sure that if I had lived in Germany during that time, I would have aided and comforted my Jewish brothers even though it was illegal. If I lived in a Communist country today where certain principles dear to the Christian faith are suppressed, I believe I would openly advocate disobeying these anti-religious laws.

Oppressed people cannot remain oppressed forever. The urge for freedom will eventually come. This is what has happened to the American Negro. Something within has reminded him of his birthright of freedom; something without has reminded him that he can gain it.

King’s life was cut short, just as great men before him who dared to challenge the existing order and politics have been assassinated. We can only imagine what other great things he would have gone on to do and what other great writings he would have contributed.

Happy Martin Luther King Jr. Day !!

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The 45th President Addresses the 45th March for Life – LOVE SAVES LIVES

WASHINGTON MARCH FOR LIFE 2018

by Diane Rufino, January 20, 2019

President Trump and Vice President Mike Pence addressed this year’s March for Life, the 45th annual March for Life in DC, by video from the White House Rose Garden.

The March for Life, which was held on Friday, January 18, marks the landmark decision Roe v. Wade, handed down on January 22, 1973, which condemned millions of unborn to the torturous and heartbreaking… the life-taking, practices of abortion doctors. The decision was based on activism, on women’s so-called rights to control her fertility, and equal protection for the woman. The decision did not include any deliberation based on science or any equal protection considerations for the unborn. The March for Life began just one year later, in January 1974, to continue the protest over that hugely over-broad and one-sided decision, and it has continued each year since.

The theme of this year’s march was LOVE SAVES LIVES.

We are lucky to have an administration that honors the most essential of fundamental rights – the Right to Life. Women and Women’s Rights organizations, ACLU lawyers and other powerful legal groups, pregnant plaintiffs, and progressive judges have the power to fight for the woman who wants the unborn growing and developing inside her to be killed and removed. But who speaks for the ones who can’t speak for themselves?  Who defends the ones who haven’t even had the chance to take a breath, let alone find their voice?  We know they feel pain inside the womb and we know they try the best they can to protect themselves from harm (as when a suction device is inserted into the womb or saline solution injected – the fetus moves away from them).  Living things feel pain; living things exercise efforts to preserve their lives.

The first step is simply to sign a law defining life. It doesn’t necessarily have to be at conception, but a simple thing as a  definition automatically saves life because once society recognizes life, then all the protections of our Bill of Rights and our Constitution are recognized.  What are our legislators waiting for?

A woman’s right to control her fertility doesn’t necessarily have to translate into wholesale slaughter of the unborn.

Anyway, again, we’re lucky and grateful to have a president, a vice president and an administration that sides with the unborn and a woman’s choice to give life and not death. It’s refreshing to hear a message of love and life, as opposed to the left’s message of self-love and death.

 

References:

Trump’s Message to those at this year’s March for Life: https://www.youtube.com/watch?v=4TNjvpzCpA0&feature=youtu.be

March for Life Blog –  https://marchforlife.org/

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The Democratic Party is the Greatest Threat to America

democrats - bad for america

by Diane Rufino, January 20, 2019

In a nutshell, this is what the Democratic Party wants for American citizens….. This is what it believes government can impose on us —

It wants open borders – to allow the uncontrolled immigration and smuggling of drugs into our country to overwhelm our system and our services and to poison and kill our children. It wants to continue allowing drug traffickers to make drugs readily available on our streets and on our college campuses, and to allow dangerous and brutal MS-13 gang members to terrorize our communities and neighborhoods. These are all simply non-important, non-crisis-level collateral problems caused by the more righteous decision to ignore immigration laws and do what is “moral.

As it allows more and more criminals and drugs into our country, it wants at the same time to confiscate firearms and to outlaw most of the common guns (205 of them) that citizens purchase and acquire to defend themselves, their families, and their homes. [Dianne Feinstein has already introduced the bill, co-sponsored by a slew of Democratic Senators, and Democratic states are already enforcing gun confiscation laws, other gun control laws, and Red Flag laws].

And then for the coup-de-grace…. in return for providing no safety or national security, for increasing the level of crime in our country, in our cities, and towns, and in our communities, and for taking away our most essential of human rights (the right to keep and bear arms for self-defense and to defend against government tyranny), it wants to jack up our federal income tax rate to 70% to pay for all the freebies that will be provided to those who don’t work, who don’t want to work, who are not “comfortable enough” in their poverty, who are having more and more kids without being married or being able to afford them, and who pour into the country illegally.

Don’t be fooled by their rhetoric or their feigned concern for morality or compassion. It’s about one thing and one thing only – growing the voter base for the Democratic Party. A party that prides itself on everything unpatriotic, unnatural, and illegal must grow its votes by increasing those bases. They despise our Constitution and our laws; they despise our traditional values and they despise our sense of nationality and “America first.”

A government that offers no protection, no security of rights, and nothing of real lasting value is one that is no different from Rome’s “bread and circuses.” Like the history of the Roman Empire, a government that just treats man’s basic urges and distracts him while the country falls into a downward spiral, is one that signal’s the country’s eventual demise.

Democrats are the biggest threat to our country and to our Constitution. They are bad for you and bad for America.

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