MOVIE REVIEW: UNPLANNED (You’ll Never Think the Same Way Again)

UNPLANNED - Abby sees ultrasound

by Diane Rufino, April 13, 2019

If anyone hasn’t seen the movie UNPLANNED, I urge you to do so. There are several take-home messages from the movie, as expressed by the woman not only who wrote the book on which the movie was based (Abby Johnson) but on whose experiences the story was based. Three of those messages are:

(1 Most abortions are carried out in the earlier part of a pregnancy (up to 12 weeks; the first trimester). Planned Parenthood does an ultrasound on each woman/girl seeking an abortion to determine as closely as possible how far along the pregnancy is. How far along determines the type of abortion the clinic will perform to terminate that pregnancy. Abby had two abortions (each in the first trimester; within the first 8 weeks, if I remember correctly). She had the first abortion in college when she found out she was pregnant. It was a bad time, she wasn’t married yet, and her boyfriend also didn’t want her to have it. The second was a bit more troublesome. She ended up marrying her college boyfriend but after she found out he cheated on her, she filed for divorce. Just after she filed, she found out she was pregnant. She said she didn’t want anything to connect her to the man she was divorcing and so she had an abortion. In short, each abortion was for one primary purpose – Convenience. Planned Parenthood took care of each abortion. She was told the fetus was just a mass of cells and not a baby yet and she shouldn’t think twice about aborting it. As the movie shows, she eventually went to work for Planned Parenthood, as a counselor. She counseled women/girls using the same logic that helped ease her conscience when she sought to terminate her pregnancies – It’s your right to control your fertility, an unwanted pregnancy is a crisis and abortion allows a woman to deal with that crisis, and the fetus is only a mass of cells and so no one is killing a baby. About 7 years into her employment at Planned Parenthood, she was promoted to its director. One day, they were short-staffed and she was called in by the abortion doctor to assist. It was the first time ever that she had been in a room during a procedure (other than when she was the patient). The doctor told her to keep an eye on the ultra-sound (as he was doing a procedure guided by ultrasound) to make sure he was directing his equipment to the fetus. At 8 weeks, she saw for the first time that the growing fetus was not a mass of cells but already had the full form of a baby, with 10 fingers and 10 toes, with a heartbeat, and already capable of moving. She was immediately touched by what she saw. It was a baby. She watched as the doctor aimed his needle and suction equipment at the baby and how the baby frantically tried to avoid them. It twisted and turned and tried very hard to move as far away from them. Abby realized that the 8-week old baby had already exhibited one of the essential characteristics of all life – the ability to respond to stimuli and especially the ability to protect and preserve its life from threats to it.   THOSE SEEKING AN ABORTION MUST SEE AN ULTRASOUND and must watch an observe how “human” and full of life” their yet unborn (yet fully-formed) baby is.

(2) Planned Parenthood DOES NOT SHOW the woman/girl the ultrasound. That is their policy. Why? First, because it is afraid that seeing the ultrasound will cause the patient to change her mind. After all, Planned Parenthood is in the business of performing abortions. Second of all, Planned Parenthood needs to perform abortions; after all, that’s how it makes its money. That is how it pays its employees, is able to provide them with benefits, and to have the money it needs to lobby for its continued existence. The more abortions it can provide, the better. That is why it doesn’t show those scared, confused, tormented women/girls seeking an abortion an ultrasound. That is why its counselors only counsel “for” an abortion and never the other way around. The numbers of abortions would drop considerably if only Planned Parenthood had the decency to show those women/girls who come through its doors the ultrasounds of the life growing inside them.

(3) What you believe in defines you. If you truly believe in something and are true to your convictions, then you will conduct your life in accordance to your beliefs. That is what Jack Phillips, the Christian cake artist from Colorado did. That is what Barronelle Stutzman, a creative florist from Washington state did. That is what Martin Luther King Jr did, and that is what Rosa Parks did on a Montgomery city bus (“I was tired of giving in”). John Winthrop, who led the Puritans to Massachusetts urged his followers to be the salt of the earth, as Jesus had spoken about in his Sermon on the Mount, so that their new community would be “as a city upon a hill, the eyes of all people are upon us.” President Reagan referenced the “city on a hill” metaphor in one of his speeches hoping that the country would see a re-birth of those values on which many of her colonies were founded. The point is that if we believe strongly enough, we must DO something about it to show others what we stand for.

I urge everyone to see UNPLANNED. Take your children. Use it as a teaching moment. My friends and I were profoundly touched by the movie.

I offer that introduction, the movie review, for the specific reason that ACTION is what is needed to stop the insidious lobbying of Planned Parenthood, including to the point of undermining one of our most precious liberty rights – the right of religious freedom; the right to believe as we are celled to believe and to exercise those beliefs, both in our private lives and in the way we conduct our lives in the public arena. After all, how can we ever be that “shining city on a hill” if we can’t exercise our religious beliefs in the public arena.

The following is an article by Alliance Defending Freedom (ADF), the legal organization which has represented (successfully) both Jack Phillips and Barronelle Stutzman. The article explains how evil Planned Parenthood is and how it must be stopped from continuing to erode our precious liberties.

The Article: “California Wasn’t Forcing Churches to Pay for Abortions… Until Planned Parenthood Stepped In”:

In 2014, the California Department of Managed Healthcare (DMHC) issued a mandate forcing churches and other religious organizations to pay for elective abortions in their healthcare plans. And if they were to sidestep the abortion mandate by not providing health insurance, they face crippling fines and penalties under Obamacare.

But it wasn’t always this way.

Previously, the DMHC had taken the constitutional route. It was allowing exemptions for Christian universities, churches, and other pro-life and religious organizations that morally object to paying for abortions – just as it (rightfully) allows for religious exemptions from the state’s contraceptive mandate.

Unfortunately, this was short lived. So what changed?

Planned Parenthood got involved. It could not tolerate these exemptions. They were cutting into their profit; cutting into their bottom line.

That much is clear from the emails that Planned Parenthood sent to officials at the DMHC and the California Health and Human Services Agency. In those emails, Planned Parenthood asked agency officials to “fix” the “issue” of religious organizations receiving exemptions from the abortion mandate. Planned Parenthood also threatened to promote a legislative “solution” if the administrative agency didn’t act. The abortion giant demanded that the DMHC:

(i)  Refuse to approve any further exemptions.

(ii)  Rescind the approval of healthcare plans that offer an exemption to the elective abortion mandate.

(iii)  “Find a solution to fix the already approved plans” that offer exemptions for religious organizations.

But forcing religious groups to act against their pro-life beliefs under the threat of government punishment violates federal law and is unconstitutional. That is why Alliance Defending Freedom (ADF) has asked the U.S. Court of Appeals for the 9th Circuit to correct this on behalf of three churches in California.

Again, what you believe in is what defines you. What our country stands for defines her. And this issue of abortion is one that defines us as a people and as a nation. We need to stand up for what we know is right. Not only are the eyes of the country and the world on us, but God is watching as well.

 

[Alliance Defending Freedom, “California Wasn’t Forcing Churches to Pay for Abortions… Until Planned Parenthood Stepped In,” April 8, 2019. Referenced at: https://www.adflegal.org/detailspages/blog-details/allianceedge/2019/04/08/california-wasn-t-forcing-churches-to-pay-for-abortions-until-planned-parenthood-stepped-in?sourcecode=10004429&id=3 ]

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How the Left Operates (How it has consistently used “race” to invalidate NC Voter ID initiatives)

VOTER FRAUD - I only got to vote once (Daily Haymaker)

(Photo Credit:  Daily Haymaker)

by Diane Rufino, March 2, 2019

North Carolina voters have tried for a long time now to enact a common-sense voter identification law. For years, they have suspected voter and election fraud, and so when groups like the NC Voter Integrity Project (founded by Jay Delancy, its president) and Project Veritas, and data analysts like Major David Goetze presented verified instances of such fraud (which the NC state Board of Elections refused to investigate and prosecute, and in fact, began to enact policies to prevent such groups and individuals from accessing public data to find the fraud), they went to the polls in great numbers to elect representatives who would finally once and for all, legislate on their behalf and address their legitimate concerns about the integrity and transparency of our elections.

North Carolina was the only state in the southeast not to have a Voter ID law.

In 2013, the Republican-majority NC General Assembly passed a strict Voter ID law (Act. 2013-381, HB 589, Part 2), to go into effect for the 2016 presidential election. It included a strict photo requirement to vote. In 2015, the law was challenged by the NC NAACP and other minority groups alleging that it was discriminatory to African-Americans. In anticipation of the lawsuit, the legislature met in an urgent session to revise the bill, making it a “non-strict” photo identification law (HB 836).

The district court upheld the revised Voter ID law, convinced that it was passed in furtherance of reasonable state interests in fraud-free elections. The NC NAACP and other groups appealed the ruling to the 4th Circuit Court of Appeals which struck the law down alleging that it was intentionally drafted and passed to target African-Americans and to diminish their voice at the ballot box.

In 2018, the Republican-dominated NC General Assembly passed a ballot initiative (HB 1092) to add a strict photo identification requirement to vote to the North Carolina state constitution. Voters would vote on the initiative (along with five other initiatives to amend the state constitution) in the November election. Despite a very strong campaign by the left, by the NAACP, by the Democratic Party, by the NC Bar Association, by the media (“North Carolina against tries to pass a Voter ID requirement to disenfranchise black voters), and others, including a scheme to confuse uninformed and ignorant Democratic voters who hadn’t even heard of any of the proposed amendments (“You must vote NO for all the amendments; they are the product of an illegal General Assembly!), the Voter ID amendment was approved by the voters.

In order to give life to the amendment, the General Assembly would need to enact legislation requiring verifiable forms of a photo ID in order to vote (a “strict photo ID” law). It would legislatively accomplish what the constitution now required. And so, on December 5-6, the General Assembly voted to approve Senate Bill 824 (SB 824), which listed the types of voter identification that would be accepted at the polls. [SL 2018-144 (2017-2018 session)]. The NC NAACP, headed by extreme race-baiter Rev. Anthony Spearman, held several press conferences articulating his delusion that North Carolina is like Alabama and Mississippi at the height of the civil rights era. They even held a rally outside the legislative building the first day of the vote.

On December 14, Gov. Roy Cooper vetoed SB 824 and House Speaker Tim Moore responded in a press statement by saying, “We are disappointed that Gov. Cooper chose to ignore the will of the people and reject a commonsense election integrity measure that is common in most states, but the North Carolina House will override his veto as soon as possible.”

And over-ride the veto they did. Before the new legislature was inaugurated (late January), and while Republicans still held a super-majority, they met and voted to over-ride Governor Cooper’s veto.

North Carolina finally… FINALLY had a Voter ID law. And not only that, they had a strict photo identification requirement to vote enshrined now in their state constitution.

The question was: How long before Democrats and liberals would challenge them and try to invalidate them. It was the question that almost every single person asked on election night and then when the General Assembly met in special session to pass the Voter ID law.

As it turned out, the first lawsuit was filed within hours after the General Assembly over-rode Governor Cooper’s veto of the Voter ID law, on December 19, 2018. The NC NAACP filed that lawsuit and Clean Air Carolina then joined in. The suit was filed against Speaker of the House Tim Moore, Senate Pro Tempore Phil Berger, and the State Board of Elections in Wake County Superior Court. [NAACP and Clean Air Carolina v. Moore and Berger (2018)]. The parties challenged two of the amendments (2 out of 4) that were adopted in November – the Voter ID amendment and the amendment capping the state income tax rate at 7% (lowering it from 10%).

In that lawsuit, the NCNAACP alleged that the NC general Assembly was improperly constituted in 2016, being the product of racially-gerrymandered state house and state districts, and therefore the amendment proposals adopted by that legislature for the November ballot were themselves tainted, were not the product of legitimate popular sovereignty, and therefore invalid acts. The NCNAACP asked the court to strike the amendments

Democrats have become all too predictable. As long as anything could be related to race, the race card would be used.

On Friday, February 22, Wake County Superior Court Judge G. Bryan Collins invalidated the amendments, The Voter ID amendment was passed by 55.49 % of NC voters and the amendment to limit the state income tax rate was passed by 57.35% of voters. In his ruling, Judge Collins agreed with the NCNAACP that the proposed amendments were passed by an “illegally constituted General Assembly” that was “not empowered to pass legislation that would amend the state’s Constitution.”

Collins further wrote the “unconstitutional racial gerrymander tainted” the three-fifth majorities in each chamber necessary to submit the amendments to voters. He said that amounted to “breaking the requisite chain of popular sovereignty between North Carolina citizens and their representatives….. An illegally constituted General Assembly does not represent the people of North Carolina and is therefore not empowered to pass legislation that would amend the state’s constitution.”

He struck down the two amendments. He declared them to be void.

The judge based his opinion on previous court rulings finding that the General Assembly had been elected using “illegally gerrymandered” district maps. What he conveniently ignored was the federal court ruling that ultimately allowed the maps to be used for the 2016 elections.

Rev. Spearman issued this press release following the ruling: “We are delighted that the acts of the previous majority, which came to power through the use of racially discriminatory maps, have been checked. The prior General Assembly’s attempt to use its ill-gotten power to enshrine a racist photo voter ID requirement in the state constitution was particularly egregious, and we applaud the court for invalidating these attempts at unconstitutional overreach.”

Most are attacking the ruling as an act of clear judicial activism. NCGOP chairman Robin Hayes told the News & Observer: “This unprecedented and absurd ruling by a liberal judge is the very definition of judicial activism.” And Sen. Ralph Hise commented that the judge clearly had “an axe to grind.” And in a statement issued to NC voters, Senate leader (Senate President Pro Tempore) Phil Berger wrote: “It’s yet another example of activist judges taking away your political power to suit their own liberal agenda.”

After the ruling was handed down, Berger posted his disgust on his Facebook page: “Your vote to add a Voter ID amendment to the state constitution was overturned on Friday by one Democratic judge in Wake County. One Democratic judge overruled two million voters—a majority—to toss out Voter ID in North Carolina. He absurdly argued that a voter ID constitutional amendment is unconstitutional.

He continued: “A single Democratic Wake County trial judge ruled that the entire North Carolina General Assembly was an unconstitutional usurper body for approximately 1 ½ years. The millions of votes cast by citizens and certified by the North Carolina Board of Elections could potentially be thrown out by one Democratic judge.”

In other words, the people of North Carolina essentially were without a government for almost two years. That is what the ruling essentially states.

Bryan Collins is a registered Democrat who has clear partisan leanings. He donated to the Kay Hagan campaign and has attended NAACP conventions. It’s hard to imagine he could be impartial in a case brought by the very group he saw fit to publicly support.

My first issue with the ruling is why Judge Collins concluded that the district maps (gerrymandering) had to have been drawn up based on the racial make-up of the voters. Why did he conclude “Race” when the district maps could have just as rationally been drawn up on account of “political identity”? Was it just because a racial minority group made the allegation? [I’m sorry, but I don’t buy the rationale in the Supreme Court decision Cooper v. Harris (2017); See Reference section].

This was the same question I asked when the 4th Circuit concluded that the changes to North Carolina’s voter laws were motivated primarily and overwhelmingly by racial animus – to intentionally suppress the African-American vote. Why did the court assume the General Assembly targeted them on account of skin color rather than on account of political identity? The Supreme Court has said that if a particular race happens to be impacted more than others by a voter ID law that is neutral on its face, than it would be permitted. It concluded that requiring photo identification to vote poses no reasonable burden to an individual right to vote.

Here are some statistics about North Carolina voters in that the NC General Assembly was able to consider in their re-districting plan: In 2016, 22% of all registered (active) voters in North Carolina were African-Americans. (That matches exactly the demographics in the state, with 22.1% of the population being African-American). Furthermore, exactly half of all registered Democrats in 2016 in North Carolina were African-American.

If you take these statistics together, it is seems quite obvious that almost all African-Americans identify as Democrats. It also seems quite obvious that the Democratic Party in North Carolina relies very heavily on the African-American community for votes.

So, if African-Americans identify almost exclusively (certainly overwhelmingly, well over 90%) with the Democratic Party, how does a judge in all honesty, conclude that district maps were drawn based on skin color and not on political identity. Isn’t “political identity” or “party affiliation” the more pertinent identifier ?

In 2016, the General Assembly drew up new district maps. A federal court (the US District Court for the Middle District of North Carolina), found the 28 of the 170 legislative districts (house and senate) and 2 of the congressional districts were improperly racially gerrymandered (black voters were drawn together in districts). The General Assembly addressed the concerns but they didn’t quite overcome the deficiencies. The 3-judge panel of judges, however, acknowledged that “there is insufficient time, at this late date, for: the General Assembly to draw and enact remedial districts; this Court to review the remedial plan,” and so, they allowed the maps to remain in place for the 2016 election. (The legislature would have to amend the maps in the 2017 session).

At some point during or after 2017, the maps would no longer be struck down by the courts as “racially” gerrymandering but rather as “partisan” gerrymandering. When the state legislature’s district maps could no longer be challenged as “racial” gerrymandering, they then began to challenge them as “partisan gerrymandering. That is, the districts were drawn to favored Republicans. Mind you, the courts are well-aware that the Supreme Court has never struck down a districting plan because it is partisan in design. But precedent has never stopped the liberal North Carolina courts. (See the Appendix at the end of the article).

The maps drawn up in 2016 and used in the 2016 election continued to provide a possible legal angle for disgruntled and racially-obsessed Democrats. The courts have been their friend in the past and they would use them again.

To understand why the NC NAACP brought its lawsuit against the Republican-majority General Assembly based on a racial allegation, we need to look at districting authority, federal law, and court precedent. We will see that the lawsuit was pure political strategy, taking advantage of outdated federal law and court decisions that still believe the United States and southern states in particular are still obsessed with white supremacy and motivated by animus and discriminatory intent when it comes to its African-American population. We will see that this is the favored approach of progressives who use the liberal courts to achieve what it can’t with duly-enacted legislatures and other governing bodies.

Each state legislature is tasked with drawing up district lines, or district maps. District lines for US congressional districts and for both state house and senate districts must be re-drawn every 10 years following the completion of the US census. The party holding the majority in the state legislature at the time re-districting maps are to be re-drawn has the benefit of drawing those district lines to its advantage. Nothing in the state constitution of North Carolina requires that re-districting be done on a non-partisan basis. In fact, for so many years, while Democrats have held the majority in both houses in the NC General Assembly, they have drawn maps to favor their party, including focusing on race since it is a strong indicator of Democratic support.

North Carolina has 13 US congressional districts (for its 13 representatives in the US Congress), it has 120 NC house districts, and 50 NC Senate districts. The NC General Assembly is alone responsible for drawing up all these maps/districts and they are NOT subject to approval by the Governor. In other words, the maps drawn up by the Redistricting Committee is not subject to being vetoed by the Governor.

In drawing up district maps, the federal government mandates that districts must have nearly equal populations to comport with the US Constitution and notions of democracy. The rule that election districts contain equal populations is the essence of the general idea of “One Person, One Vote,” which was emphasized by the Supreme Court in 1962 (Baker v. Carr). It means that a person’s vote counts equally no matter where he casts his vote. Civil Rights laws further mandate that district maps must not discriminate on the basis of race or ethnicity. It is OK to discriminate based on the white color of one’s skin, it is OK to discriminate based on affluence (or lack thereof), and it is OK to discriminate based on political affiliation. The courts have always tolerated partisan gerrymandering (even when district maps assume no reasonable shape at all) but they do not tolerate racial gerrymandering.

Hence we are starting to see why the allegation of “racial” gerrymandering was made. Partisan gerrymandering will not guarantee a favorable challenge and outcome. An allegation of “racial” gerrymandering will.

This is how the Democratic machine works.

Anyway, Senate leader Phil Berger has filed an appeal on behalf of the Republican legislative leaders, calling Judge Collin’s ruling an “absurd decision.” His full announcement read: “We are duty-bound to appeal this absurd decision. The prospect of invalidating 18 months of laws is the definition of chaos and confusion. Based on tonight’s opinion and others over the past several years, it appears the idea of judicial restraint has completely left the state of North Carolina. Rest assured, our lawyers will appeal this ridiculous ruling, but it’s yet another example of activist judges taking away your political power to suit their own liberal agenda.”

Republicans contend Collins’ reasoning jeopardizes dozens of laws.

Here is what the appeal by the Republican legislators argues: (i) Judge Collins disregarded the fact that a federal court had allowed the 2016 election to proceed using the challenged districting maps; (ii) If Collins’ ruling should stand, then essentially the state had no government for almost 2 years (2017-2018). Yet residents were still required to pay taxes to it; (iii) If Collin’s ruling should be permitted to stand, then it would invalidate all the laws of that “illegal legislative session – anarchy; and (iv) To allow Collins’ ruling to stand would create chaos and further litigation in North Carolina.

In the meantime, Sen. Berger appealed to Judge Collins to stay his order striking down the amendments (stay = “put on hold”) while he and fellow Republican leaders file their appeal with the state appellate court, but he refused. The case will most likely reach the state Supreme Court. Currently, the seven-member body is composed of at least five registered Democrats, but Governor Cooper will have the opportunity to appoint one more associate justice, to fill the vacancy on the court caused by his appointment of Associate Justice Cheri Beasley to Chief Justice. It will no doubt be another Democrat, bringing the total to 6 Democrat justices.

A statement by Sen. Berger after the ruling by Judge Collins perhaps describes it best: “All North Carolinians, regardless of party, should be concerned by this lawlessness, because it’s only a matter of time before a judge comes for their preferred legislative policies. Judge Collins is calling the legislature a usurper body while himself usurping the will of millions of North Carolinians who voted to amend their own constitution.”

The one redeeming quality about this ruling is that we can now see all so clearly how liberal-minded, overreaching judges tend to bend the Constitution for progressive purposes and how they use their positions on the bench to disregard the democratic process and un-do the will of the people.

So what does this mean for the honest and decent and well-meaning citizens of North Carolina who want transparent elections in their state? What does this mean for the honest and decent and well-meaning North Carolinians who, despite what Spearman says, do not live their lives seeing things in terms of black and white, who enjoy living side-by-side with persons who don’t look exactly like themselves, and who simply are concerned about the integrity of the NC election process? What does this mean for the majority of North Carolinians who have pressured their state government to address voter fraud and potential voter fraud since 2010?

The good news is that the Voter ID law (SB 2018-144) passed by the General Assembly in December is still good – at least for now. It is a stand-alone bill, not tied by language to the constitutional amendment, and passed by members of the General Assembly of both parties (with two Democrats joining Republicans in the House and one joining Republicans in the Senate). The equipment is not in place yet to provide a free photo ID to those who can’t afford one or who otherwise can’t obtain one, but should be in time for the next election cycle.

The appeal has been filed by Senate leader Phil Berger and House Speaker Tim Moore and we should soon find out if Judge Collins’ judicial order will stand or be overturned. If the order invalidating the amendments is upheld, there may be a lawsuit to challenge the Voter ID law as the product of an illegally-constituted General Assembly but to move forward under that theory would potentially mean that every single piece of legislation and every decision made could also be challenged in court. My guess is that such a lawsuit won’t be filed.

For now, North Carolina has a strict Voter ID law in place. The only thing the NCNAACP has done is to manufacture a crisis of racism that doesn’t exist and to be successful in convincing a lower state court judge to issue one of the grossest acts judicial activism in recent history. There should be no place in North Carolina for the NCNAACP.

 

References:

Voter ID law – SB 2018-144 (2017-2018) – https://www.ncleg.gov/BillLookup/2017/S824“NC Judge Invalidates Two Constitutional Amendments Passed by Voters Last Fall,” NC Family Policy Facts, February 25, 2019. Referenced at: http://my.ncfamily.org/site/MessageViewer?em_id=5207.0&dlv_id=9084

Gary Robertson, “Judge Strikes Down North Carolina Voter ID OK’ed by Voters,” The Washington Post, February 22, 2019. Referenced at: https://www.washingtonpost.com/politics/judge-strikes-down-north-carolina-voter-id-okd-by-voters/2019/02/22/0cfd1a98-3708-11e9-8375-e3dcf6b68558_story.html?utm_term=.24d45d7283d2

”Voter ID History,” National Conference of State Legislatures. Referenced at: http://www.ncsl.org/research/elections-and-campaigns/voter-id-history.aspx

Rebecca Trippett, “NC in Focus: Who are NC’s Democratic Voters?” UNC Carolina Demography, October 2, 2016. Referenced at: https://demography.cpc.unc.edu/2016/10/07/nc-in-focus-who-are-ncs-democratic-voters/

“Federal Judges: Racially-Tainted General Assembly Districts Must Be Redrawn,” WRAL, August 11, 2016. Referenced at: https://www.wral.com/federal-judges-racially-tainted-general-assembly-districts-must-be-redrawn/15920846/

Adam Liptak, “Justices Reject 2 Gerrymandered North Carolina Districts, Citing Racial Bias,” The New York Times, May 22, 2017. Referenced at: https://www.nytimes.com/2017/05/22/us/politics/supreme-court-north-carolina-congressional-districts.html

VIDEO: “How Gerrymandering Got its Name.”   https://www.youtube.com/watch?v=8BWVDUpEaNM

VIDEO: “Crash Course on Re-districting.” https://www.youtube.com/watch?v=MnhFm5QVVTo

NAACP and Clean Air Carolina v. Moore and Berger, COMPLAINT –

https://www.southernenvironment.org/uploads/words_docs/Complaint_-_Usurpers_FINAL_-_pdf.pdf [Notice how the NAACP refers to Republican leaders as “Usurpers”]

NAACP and Clean Air Carolina v. Moore and Berger (2018), OPINION – https://www.southernenvironment.org/uploads/words_docs/doc03389420190222171503.pdf

Ariane de Vogue, “Supreme Court Blocks Court Order to Redraw North Carolina Congressional Districts,” CNN, January 19, 2018. Referenced at: https://www.cnn.com/2018/01/18/politics/north-carolina-supreme-court-redistricting/index.html   [US Supreme Court voted 7-2 to freeze (ignore) a lower federal court ruling that struck down North Carolina’s congressional districts, holding that it amounted to an unconstitutional partisan gerrymander. The order makes it likely, although not certain, that the controversial maps will be used for the 2020 election. In January 2018, a three-judge panel of the 4th Circuit Court of Appeals agreed with the lower district court and held that North Carolina’s 2016 plan was enacted “with the intent of discriminating against voters who favored non-Republican candidates” and that the plan violated the First Amendment by “unjustifiably discriminating against voters based on their previous political expression and affiliation.” Partisan gerrymandering had been permitted by the Supreme Court and lower courts in the past, assuming that politics was always involved in the drafting of maps. The lower district court had ordered the NC General Assembly to enact a remedial redistricting plan by January 24, 2019. The Supreme Court voted to freeze that court order and, at least for now, to allow the maps to remain in place for the next election. The order comes as the Supreme Court is also considering two other partisan gerrymander cases – one from Maryland and the other from Wisconsin. It is likely that should it take those cases, the NC case will be re-considered along with the other two. If the Supreme Court agrees to hear the cases, it will be the first time that the high court takes up the issue of “when is partisan gerrymandering too extreme” (so as to offend notions of fairness). The court will address the question of whether or not standards for partisan gerrymandering can be determined and applied].

Voter ID Laws by State, Ballotpedia. https://ballotpedia.org/Voter_identification_laws_by_state

“Redistricting and the Supreme Court: The Most Significant Cases,” National Commission of State Legislatures (NCSL), July 9, 2018. Referenced at: http://www.ncsl.org/research/redistricting/redistricting-and-the-supreme-court-the-most-significant-cases.aspx

Those cases:

Baker v. Carr, 369 U.S. 186 (1962). For the first time, the court held that the federal courts had jurisdiction to consider constitutional challenges to state legislative redistricting plans. The Court held that a federal district court had jurisdiction to hear a claim that this inequality of representation violated the Equal Protection Clause of the Fourteenth Amendment.

Gray v. Sanders, 372 U.S. 368 (1963). The Court established the constitutional standard for equality of representation as “one person, one vote.”

Karcher v. Daggett, 462 U.S. 725 (1983). Congressional districts must be mathematically equal in population, unless necessary to achieve a legitimate state objective.

Shaw v. Reno, 509 U.S. 630 (1993). Legislative and congressional districts will be struck down by courts for violating the Equal Protection Clause if they cannot be explained on grounds other than race. (While not dispositive, “bizarrely shaped” districts are strongly indicative of racial intent).

Cooper v. Harris, (2017). Partisanship cannot be used to justify a racial gerrymander.

**** I always thought that it was odd the Courts did so, since: (i) it is the manipulation of district maps for partisan purposes that is the real concern in elections, and (ii) all too often, racial identity and political identity are the same.

 

APPENDIX I: Gerrymandering in North Carolina (since 2016)

In November 2010, the Republican party gained control of both houses of the North Carolina General Assembly. Republicans hadn’t had control of both houses since 1896, when the party successfully fused with the Populist Party. Republicans first gained control of the state house in 1998 but they have been unable to gain control of the state senate since 1896. Prior to the 2010 election, corrupt Democratic Senate leader Marc Basnight and corrupt House Speaker Joe Hackney controlled the state’s government. Basnight led the Senate for a record 18 years. The mandate for the newly-elected Republican majority was to end the corruption, to set a priority to live within a smaller more responsible budget (the state faced an estimated $3 billion deficit), and to enact a Voter ID bill.

Elections have consequences. Obama said this many times after he won, and in fact, the Supreme Court has recognized this common-sense truth in reviewing election matters.

The push-back against Republicans began immediately.

The following is taken directly from the “FACTS” section of the Complaint filed by the NCNAACP. It lays out the series of lawsuits against the North Carolina General Assembly (N.C.G.A.) with respect to the district maps.

The Unconstitutional N.C.G.A:

(1) The N.C.G.A. is comprised of 50 Senate seats and 120 House of Representative seats pursuant to the Constitution of the State of North Carolina, Art. II, §§ 2, 4.

(2) In 2011, following the decennial census, the N.C.G.A. redrew the boundaries of North Carolina legislative districts for both the NC Senate and the NC House of Representatives. The districts were enacted in July 2011.

(3) The N.C.G.A. unconstitutionally and impermissibly considered race in drawing the 2011 legislative maps, resulting in legislative districts that unlawfully packed black voters into election districts in concentrations not authorized or compelled under the Voting Rights Act of 1965.

(4) On November 4, 2011, the NC NAACP joined by three organizations and forty six individual plaintiffs filed a state court action that raised state and federal claims challenging the districts as unconstitutionally based on race. Dickson v. Rucho, 766 S.E.2d 238 (N.C. 2014), vacated, 135 S. Ct. 1843 (2015) (mem.), remanded to 781 S.E.2d 404 (N.C. 2015); vacated and remanded, 198 L. Ed. 2d 252 (U.S. 2017) (mem.), remanded 813 S.E.3d 230 (N.C. 2017).

(5) On May 19, 2015, plaintiffs Sandra Little Covington et al, filed a parallel challenge in federal court alleging that twenty-eight districts, nine (9) Senate districts and nineteen (19) House of Representative districts, were unlawful racial gerrymanders in violation of the Equal Protection Clause of the Fourteen Amendment of the United States Constitution. Covington v. North Carolina, 316 F.R.D. 117 (M.D.N.C. 2016).

(6) In August 2016, the three-judge federal district court panel unanimously ruled for plaintiffs, holding that “race was the predominant factor motivating the drawing of all challenged districts,” and struck down the twenty-eight (28) challenged districts (nine Senate districts and nineteen House districts) as the result of an unconstitutional racial gerrymander. See Covington v. North Carolina, 316 F.R.D. 117, 124, 176 (M.D.N.C. 2016), aff’d, 581 U.S. ––––, 137 S.Ct. 2211 (2017) (per curiam).

(7) On June 5, 2017, the United States Supreme Court summarily affirmed the lower court’s ruling that the twenty-eight (28) challenged districts were the result of an unconstitutional racial gerrymander, North Carolina v. Covington, 581 U.S. ––––, 137 S.Ct. 2211, (2017) (per curiam). On June 30, 2017, a mandate was issued as to the U.S. Supreme Court’s order affirming the lower court’s judgment.

(8) The United States Supreme Court, however, vacated and remanded the lower court’s remedial order for a special election, ordering the lower court to provide a fuller explanation of its reasoning for the U.S. Supreme Court’s review. North Carolina v. Covington, — U.S. —, 137 S. Ct. 1624 (2017) (per curiam).

(9) On remand, the three-judge panel granted the N.C.G.A. an opportunity to propose a new redistricting plan to remedy the unconstitutional racial gerrymander. Covington v. North Carolina, 283 F.Supp.3d 410, 417–18 (M.D.N.C. 2018). In August 2017, the N.C.G.A. submitted a proposed remedial map, drawn by Dr. Thomas Hofeller, the same mapmaker the General Assembly had hired to draw the 2011 invalidated maps. Dr. Thomas redrew a total of 11 of the 170 state House and Senate districts from the 2011 unconstitutionally racially-gerrymandered maps. Id. at 418.

(10) After reviewing the General Assembly’s remedial plan, the three-judge panel determined that a number of the new districts put forward by the N.C.G.A. in its 2017 remedial plan were essentially continuations of the old, racially gerrymandered districts that had been previously rejected as unconstitutional and either failed to remedy the unconstitutional racial gerrymander or violated provisions of the North Carolina Constitution. Id. at 447-58. For those defective districts, the three-judge panel adopted remedial districts proposed by a court

appointed special master. Id. at 447-58. The United States Supreme Court affirmed the districts adopted by the three-judge panel, except for certain districts in Wake and Mecklenburg Counties that had not been found to be tainted by racial gerrymanders, but were drawn in alleged violation of the state constitutional prohibition against mid-decade redistricting.   North Carolina v. Covington, 138 S.Ct. 2548 (2018).

(11) In order to cure the 2011 unconstitutional racial gerrymander, the remedial maps redrew 117 legislative districts.

(12) In November of 2018, elections for all N.C.G.A. seats were held based on the redrawn districts, the first opportunity that voters had had since before 2011 to choose representatives in districts that have not been found to be the illegal product of an unconstitutional racial gerrymander.

(13) Since June 5, 2017, the N.C.G.A. has continued to act and pass laws.

Reference: NAACP and Clean Air Carolina v. Moore and Berger, COMPLAINT –https://www.southernenvironment.org/uploads/words_docs/Complaint_-_Usurpers_FINAL_-_pdf.pdf [Notice how the NAACP refers to Republican leaders as “Usurpers”]

Additional Gerrymandering History (Background of a Possible Upcoming Supreme Court case) –

In 2017, two congressional district maps, one for congressional district 1 and the other for congressional district 12, were challenged as being racially gerrymandered, and the district and appellate courts agreed. It was appealed to the US Supreme Court, which also affirmed on May 22, 2017. The high Court agreed that the districts in question were improperly racially gerrymandered and sent the case back to the district court for a suitable remedy. The district court ordered the General Assembly to draft remedial maps for use in the 2018 election cycle, which it did. And the court approved them. (So all is OK with the 2018 elections)

Those same district maps were then challenged as being improperly partisan gerrymandered. In 2017, a federal district court and held that North Carolina’s 2016 plan was enacted “with the intent of discriminating against voters who favored non-Republican candidates” and that the plan violated the First Amendment by “unjustifiably discriminating against voters based on their previous political expression and affiliation.” Partisan gerrymandering had been permitted by the Supreme Court and lower courts in the past, assuming that politics was always involved in the drafting of maps. The Supreme Court has always been of the understanding (the rightful expectation) that “elections have consequences.” The lower district court had ordered the NC General Assembly to enact a remedial redistricting plan by January 24, 2019. The ruling was appealed.

In January 2018, a panel of 3 federal judges affirmed the lower court ruling and declared the congressional district maps to be unconstitutional, being the product of partisan gerrymandering – that is, the maps were drawn to unfairly favor Republican candidates. (“The Republican-dominated state’s House map violated the First and 14th Amendments by unfairly giving one group of voters – Republicans – a bigger voice than others in choosing representatives”). The ruling was appealed to the Supreme Court.

On January 19, the US Supreme Court voted 7-2 to freeze (ignore) the lower federal court ruling,. The order makes it likely, although not certain, that the controversial maps will be used for the 2020 election. The order comes as the Supreme Court is also considering two other partisan gerrymander cases – one from Maryland and the other from Wisconsin. It is likely that should it take those cases, the NC case will be re-considered along with the other two. If the Supreme Court agrees to hear the cases, it will be the first time that the high court takes up the issue of “when is partisan gerrymandering too extreme” (so as to offend notions of fairness). The court will address the question of whether or not standards for partisan gerrymandering can be determined and applied].

In August 2018, the same three-member panel of judges reached essentially the same conclusion that it had in January – that NC’s district maps were unconstitutionally gerrymandered to favor Republicans. The Supreme Court had never struck down a state district map based on partisan gerrymandering. However, the ruling sets up a delicate tactical question for the Supreme Court, particularly since two other states have had their districting maps challenged as well as being improper partisan gerrymandering.

 

APPENDIX II: Why the NC NAACAP Filed the Lawsuit

In short, the NC NAACP is an extreme racist group, believing the white community has one interest only – in keeping the black community down, disadvantaged, poor, and suppressed at the ballot box. It believes that the primary object of white legislators is to plot and scheme on how to do all of the above, especially to suppress the black vote. Whites = bad. Blacks = victims. Whites = Republican. Blacks = Democrat. It’s president, T. Anthony Spearman, has spoken often, with racism dripping from his lips, about how white legislators still cling to the Jim Crow mentality of the post-Reconstruction era and “meet in their lily-white caucuses” to “enshrine racism” in the state’s laws and most recently, to enshrine it in the state’s constitution. His organization will do anything, and has done everything in its power (ie, to cry “racism” about everything that the legislature does), to prevent a voter ID law from being enforced in North Carolina and to keep the notion alive that it has no other purpose than to suppress the black vote.

In filing the lawsuit, Spearman commented: “The supermajority’s proposed amendments to the North Carolina constitution represent the greatest threat to our state’s democratic institutions since the Civil War.”

As usual, Spearman shows his utter ignorance of history and his willingness to distort history to further his ambitions. It was the Republicans in government (in power) that first gave blacks access to state democratic institutions and then to national democratic institutions. It was a Democrat, a slavery-supporter named Roger Taney (Chief Justice Roger Taney), who wrote the opinion in the infamous Dred Scott case (1857) that held that the United States never intended for persons of African descent to be included in the body politic (ie, to be considered as citizens) and hence, they could never be entitled to any protections under the US Constitution. In short, Mr. Dred Scott had no legal right even to bring his lawsuit.

It was the Democratic party and Democratic leaders who plotted and schemed to enshrine racism in laws, state constitutions, institutions, policies, and practices, and who engineered the social arraignment that was state-sponsored segregation (Jim Crow) to keep the races separated, implying that one race was superior to the other. It was Democratic Senators who filibustered in 1965 to prevent the passage of civil rights legislation. It was Republican Congressional leaders who banded together to break the filibuster and get the legislation passed.

If Spearman had any understanding or appreciation of history, he would know that Republicans aren’t the enemy of the black community. They aren’t the party that assumes that blacks are less intelligent, less capable, far less disadvantaged, incapable of making decisions on their own, incapable of competing in the workforce, incapable of supporting themselves, etc and hence government must take care of them. The Republican Party is the party of true equality, and all that it mean and all that it requires.

 

APPENDIX III: Why the NAACP Alleged the Income Tax Amendment to be Unconstitutional

The reason was provided in the Complaint filed by the NCNAACP:

“The income tax cap constitutional amendment harms the NCNAACP, its members, and the black community and its ability to advocate for tis priority issues. Because the amendment places a flat, artificial limit on income taxes, it prohibits the state from establishing graduated tax rates on higher-income taxpayers and, over time, will act as a tax cut only for the wealthy. This tends to favor white households and disadvantages people of color, reinforcing the accumulation of wealth for white taxpayers and undermining the financing of public structures (ie, public services) that benefit non-wealthy people, including people of color. For example, historically in North Carolina, decreased revenue produced by income tax cuts in the state has resulted in significant spending cuts that disproportionately hurt public schools, eliminated or significantly reduced funding for communities of color, and otherwise undermined the economic well-being of the non-wealthy.”

[In other words, the black community has nowhere achieved what the white community has achieved in NC, and because the black community has not achieved what the white community has achieved, the black community is entitled to what the white community earns. It makes no difference that the income tax cap amendment is absolutely neutral in its language and free from racial consideration. The black community is entitled to the wealth earned by others, which according to the NCNAACP, is earned almost exclusively by the white community].

Here is my question: Since the Reconstruction era, and especially after 1896, the NC state legislation has been in the hands of Democrats. Since blacks make up only about 22% of the population in the state, the only way that Democrats could have been elected and have continued to maintain control of the state government is if a large percent of voters were white. Democrats have held majorities and supermajorities for over 100 years, so if Spearman is complaining about the historic disadvantaged status of blacks in North Carolina, doesn’t it make sense that that’s because of the 100 years or so of Democratic government? Of Democratic policies? Republicans haven’t had the majority so it wasn’t their policies that have kept blacks so disadvantaged, so illiterate, so economically-depressed, etc. Maybe it was the white Democrats who are the real racists? In any case, it was Democrats, Democratic rule, and the long history of Democratic rule in North Carolina that have given rise to the status of blacks in the state.

Reference: NAACP and Clean Air Carolina v. Moore and Berger (2018), OPINION – https://www.southernenvironment.org/uploads/words_docs/doc03389420190222171503.pdf

 

APPENDIX IV. Why Clean Air Carolina joined the Lawsuit

Clean Air Carolina’s issue is not with the amendments at all. It is with having too many Republicans in government. This is what they said: “If the legislature is successful in its power grab it will have dire consequences for citizens in the voting booth, for our communities and the air we breathe, and for our basic democratic institutions. This is not our typical lawsuit but the proposed ballot measures would impact our ability to fulfill our mission by limiting the voice that North Carolinians have in state policy, particularly on urgent environmental issues.”   [Translation of “the voice that North Carolinians have in state policy”: They obviously mean that conservatives don’t count as North Carolinians. They are only concerned about Democratic residents of NC].

“This legislature has carried out extraordinary attacks to strip fundamental clean air and clean water protections that North Carolinians have been assured of for decades, breaking with our state’s long history of bipartisan support for environmental safeguards. At the moment we are poised to re-establish fair representation that will accurately reflect voters on environmental issues, they have attempted a desperate and unlawful power grab.”

In short, Clean Air Carolina honestly believes that Republicans have no interest in the environment. Hence, if they can help get rid of Republicans legislators, they would happily do so.

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Democrats Continue to Devolve the US into an Evil, Heartless, and Uncivilized Nation

ABORTION - late-term abortion

(Photo Credit: Robert Valencia)

by Diane Rufino, March 1, 2019

This past Monday, February 25, US Senate Democrats blocked a Republican bill – The BORN-ALIVE ABORTION SURVIVORS PROTECTION ACT – that would have threatened prison time for doctors who don’t attempt to save the lives of infants born alive during failed abortions.

Why are Democrats openly embracing infanticide? What demons do they have whispering in their ears? What devil sits on their shoulders? What evil master do they serve?

All prominent Democratic 2020 presidential hopefuls in the Senate voted down the measure, including Bernie Sanders of Vermont, Kamala Harris of California, Cory Booker of New Jersey, Kirsten Gillibrand of New York, Amy Klobuchar of Minnesota and Elizabeth Warren of Massachusetts. The final vote was 53-44 to end Democratic delaying tactics — seven votes short of the 60 needed.

Three Democrats joined Republicans to support the bill — Joe Manchin of West Virginia, Bob Casey of Pennsylvania and Doug Jones or Alabama. Three Republicans did not vote, apparently because of scheduling issues and plane flight delays — including Kevin Cramer of North Dakota, Lisa Murkowski of Alaska and Tim Scott of South Carolina (a HUGE proponent of Life).

The Born-Alive Abortion Survivors Protection Act would have required that “any health care practitioner present” at the time of a birth “exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as a reasonably diligent and conscientious health care practitioner would render to any other child born alive at the same gestational age.”

To most people, it is a no-brainer that a doctor or other health-care professional should preserve the life and health of a newborn. Am I wrong to believe that the medical profession still adheres to the historic oath that dates back to Greek times, the Hippocratic Oath, which states that a doctor shall seek to preserve health and preserve life, to endeavor to do no harm?  The modern version of the oath includes this statement: “Above all, I must never play God.”

Ironically, one classical version of the Hippocratic Oath addresses abortion: “I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy.”

Last week, I watched the 2018 movie GOSNELL: The Trial of America’s Biggest Serial Killer with members of my Tea Party group. The movie chronicles the investigation by Philadelphia Police and the DEA of Kermit Gosnell, the infamous abortion doctor who operated an abortion clinic in Philadelphia, and his subsequent trial. Initially investigated for overprescribing OxyContin (oxycodone; an opioid derivative of heroin), a raid on his clinic uncovered horrors beyond description. He was charged with eight counts of murder, 24 felony counts of performing illegal abortions beyond the state of Pennsylvania’s 24-week time limit (“viability”), and 227 misdemeanor counts of violating the 24-hour informed consent law (patients must wait 24 hours after proper consultation by the clinic). The murder charges related to a woman who died following an abortion procedure, and seven newborns who were killed by having their spinal cords severed with scissors after being born alive during attempted abortions. Surprisingly, the defense was able to mount an extraordinary defense of Gosnell and his practices, including an admonition by the judge that nothing asserted in the courtroom would be allowed to contradict a woman’s abortion rights. Towards the end of the trial, the prosecution was able to locate a young girl (in her teens) who worked at the clinic and who happened to take pictures of the babies who had their spinal cords severed by Dr. Gosnell.  When asked on the stand why she took the pictures, the girl responded to the effect that the babies were so big and so perfect and they looked like they should have been welcomed into a family, with brothers and sisters. She thought there should have been some record, a picture, to acknowledge their existence. Those pictures were shown to the jury, and one by one, their hearts melted and they looked down or began to sob.  Why? Because they inherently connected with the humanity in a newborn and even in a full-term fetus. Dr. Gosnell had committed atrocities that shocked their conscience. My suspicion is that they may have been convinced by the defense to overlook the successful abortions of a full-term fetus, but to take that additional step with callousness and without regard to the life on the medical table in front of him, struggling to move and breathe, wanting to be warm and cradled and comforted and kissed and loved, and take its life was an act of pure evil.

Inherently, we value life and we act under the teachings of compassion and care that our religion has impressed on us, even at some point in our lives.

The sad and tragic thing about this law is that it even needed to be introduced at all.  Providing medical attention and care to a newborn, even if it is a product of a failed abortion attempt, is the natural, the right, the intuitive thing to do.  How can those who would want medical care for themselves have the right to decide to deny it to others?  A life is a life.  It’s not defined by number of years but by DNA and breath and a beating heart.  It’s defined by an instinct to survive and continue living.

After the vote, President Trump tweeted: “This will be remembered as one of the most shocking votes in the history of Congress. If there is one thing we should all agree on, it’s protecting the lives of innocent babies.”

Today the left uses the excuse that a baby inside the womb is the sole property and concern of the mother to justify its extermination. What will tomorrow’s excuse be?  Usefulness?  Competency?  Old age?

Here are my questions regarding this vote on this Born-Alive Abortion Survivors Protection Act and in fact, regarding the extreme position that Democrats/liberals/progressives take on abortion rights in general:

(1)  Why do Democrats/liberals/progressives believe that abortion rights are broad and extensive enough to encompass a right to make sure that the abortion is successful, to the point that it includes infanticide?  In other words, why do Democrats/liberals/progressives believe that abortion rights are broad and extensive enough to include the right to condemn a baby born alive to be killed? The one thing the Roe v. Wade opinion seems to be clear on is that as long as the unborn is still inside a woman’s womb, it is not a life for which the Constitution or our laws can provide protection. But once that unborn has actually been born, then, as the opinion supports, that baby is now a new “life.”

(2)  The Fourteenth Amendment reads: “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  According to the plain language of the Fourteenth Amendment, any baby born, even if it is the result of a failed abortion, is a citizen and therefore a person with recognized liberty rights. If that is the case, then any person who terminates that life after birth, again even if that baby has suffered from an attempted abortion and even if that baby was intended to be condemned by the mother, is guilty not only of murder, but of intentional, premediated murder.

(3)  Democrats/liberals/progressives believe what Roe v. Wade stands for – that as long as the unborn is inside a woman’s womb, she has complete control over its destiny.  But once it emerges from the womb, even if it is the result of a failed abortion, then don’t both parents (mother AND father) have parental rights to that newborn baby?  Our child support laws would suggest so.

(4)  And if that “unwanted” baby should emerge from the womb, even if it is the result of a failed abortion, then wouldn’t that newborn baby become the ward of the state?  That is, wouldn’t the government (society in general) have the right and duty to care for it?

(5)  If all of the above are true, then how could any member of Congress, taking an oath to the Constitution, vote against the Born-Alive Abortion Survivors Protection Act.

(6)  The proper approach by government would have been to legislatively define LIFE at some point during fetal development.  (See my article “RESOLUTION to Define LIFE Through Legislation”).

To echo President Trump’s words, this vote by the US Senate “will be remembered as one of the most shocking votes in the history of Congress. If there is one thing we should all agree on, it’s protecting the lives of innocent babies.”

 

References:

“Dems Block ‘Born Alive’ Bill to Provide Medical Care to Infants Who Survive Failed Abortions,” FOX News, February 27, 2019.  Referenced at:  http://www.fox10phoenix.com/news/us-world-news/dems-block-born-alive-bill-to-provide-medical-care-to-infants-who-survive-failed-abortions#/

Diane Rufino, “RESOLUTION to Define LIFE Through Legislation,” For Love of God and Country, February 24, 2019.  Referenced:  https://forloveofgodandcountry.com/2019/02/24/model-resolution-to-define-life-through-legislation/

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(MODEL) RESOLUTION to Make the Killing of a Police Officer a Capital Crime

- AWESOME (peace sign, Feb. 2019)

by Diane Rufino, February 20, 2019

I wrote the following Resolution for the North Carolina General Assembly. I shared it with my state representatives with the intent to acknowledge the increased risk our members of law enforcement face in this new violent era as well as to take a stronger stand at protecting them.

RESOLUTION: AMENDING NORTH CAROLINA’S CRIMINAL STATUTES TO MAKE THE KILLING OF A POLICE OFFICER OR STATE TROOPER A CAPITAL CRIME

Whereas, the wonton attacks and shootings of police officers is on the rise;

And whereas, the culture of hate and distrust of law enforcement has reached an all-time high since the days of the civil rights era, intentionally perpetrated by race-baiting groups and other politically-motivated progressive elements;

Whereas, police officers take an oath to “protect and serve the community” without exception to which members of society need to be protected and served;

Whereas, police officers and state troopers put their lives on the line every day in service of their community and the state;

Whereas, police officers and state troopers assume the risk of harm and death in the everyday course of their jobs. Theirs is not the option of refusing to engage a hostile individual, a criminal, or a would-be killer;

Whereas, in addition to assuming the risk, police officers and state troopers bear the additional danger of themselves being the target of violence in many cases, simply because they wear the uniform of law enforcement;

Whereas, the intentional killing of a human being meets the elements of First Degree, or Capital Murder and the murder of a police officer or state trooper is particularly heinous because of their obligation to wear the uniform, to identify as a member of law enforcement, and to confront danger without question;

Therefore, because of this assumption of risk, this inability to walk away, or to ignore a potentially violent confrontation or potentially violent individual, and the fact that they themselves, as men and women in uniform, are targets for violence and death,     the Coastal Carolina Taxpayers Association                 strongly recommends that the North Carolina criminal statutes be amended to make the killing of a police officer or state trooper a capital crime, punishable by the death penalty.

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(MODEL) RESOLUTION to Define “LIFE” Through Legislation

- 000000

by Diane Rufino, February 21, 2019

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

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

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

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

RESOLUTION To DEFINE “LIFE” THROUGH LEGISLATION

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

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

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

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

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

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

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

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

(ii)     For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

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

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

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

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

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

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

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

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

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

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

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

Whereas, in fact, when the Fourteenth Amendment was adopted in 1868, the individual states widely recognized children in utero as persons. Nearly every state had criminal laws proscribing abortion, and most of these statutes were classified among ‘offenses against the person.’ (it is clear that the word ‘person’ referred to the fetus”);

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

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

Whereas, at the time the Fourteenth Amendment was adopted, nine of the ratifying states explicitly valued the lives of the preborn and their pregnant mothers equally by providing the same range of punishment for killing either during the commission of an abortion;

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

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

Whereas, the adoption of strict anti‐abortion measures in the mid‐nineteenth century was the natural development of a long common‐law history proscribing abortion. Beginning in the mid‐thirteenth century, the common law codified abortion as homicide as soon as the child came to life (“quickening”; animation; when the mother could first feel fetal movement) and appeared recognizably human (formation), which occurred approximately 40 days after fertilization;

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

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

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

Whereas, the fact that a majority of the States at the time of the Fourteenth Amendment, and especially those that ratified it, had restrictions on abortions for at least a century should have been strong indication to the Court that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” [Snyder v. Massachusetts, pg. 105 of the opinion];

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

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

Whereas, William Blackstone’s Commentaries on the Laws of England, a treatise that had profound influence on legal thinking and which was used in American law schools, was relied on by the Supreme Court, and continues to be cited even today in Supreme Court decisions (cited at least 10-12 times each year.) expressly recognized that personhood and the right to life existed before birth. He set forth a simple and clear legal standard:  “Where life can be shown to exist, legal personhood exists.” [Blackstone’s Commentaries];

Whereas, a look back through history shows that there were no laws to specifically protect the unborn prior to birth, and that makes sense in light of the generally-accepted definition of “personhood.” A pregnant woman was carrying a “life,” and hence she was carrying a new person;

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

Whereas, in his dissenting opinion in Roe v. Wade, Justice Byron White argued: “With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.” [Roe v. Wade];

Whereas, Justice White continued in his dissenting opinion: “At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons – convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure. The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother….. The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs..” [Roe v. Wade];

Whereas, in his dissenting opinion in Roe, Justice William Rehnquist argued: “The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.  Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and ‘has remained substantially unchanged to the present time.’ There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.” [Roe v. Wade];;

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

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

Whereas, the Declaration of Independence professes: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”;

Whereas, the minute an individual is created and blessed with life, he or she is endowed with inalienable rights, including the right to Life. Moreover, government is instituted for the primary purpose of secure those rights. It makes no difference whether that individual is 15 years old, 40 years old, 10 years old, 1 month old, or 20 weeks old. The minute it became a living being, it is understood to be entitled to the most essential of all inalienable (those attaching to our very humanity) rights;

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

Whereas, the Fourteenth Amendment reads: “… nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws’;

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

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

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

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

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

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

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

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

Merle H Weiner, “Roe v. Wade Case (US),” Oxford Constitutional Law –  http://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e564    [Under an “originalist” approach, the Court would have had to determine what the word “persons” was understood to mean when the 14th Amendment was written and ratified. “Originalism” is often equated with “Textualism” (where judges look at the meaning of the words and intent at the time they were written)  A honest analysis would have looked not only at the definition of the term “persons” around the time of 1868, but also at society’s view of abortion at that time. In fact, for a claimed right to be covered by the 14th Amendment and hence free from government/state regulation, that right would have had to have been considered an essential liberty right at the time the Amendment was adopted. In other words, the Court should have asked two questions: “What did the term ‘persons’ mean back in 1868?”  And, “Was abortion considered a fundamental liberty right back in 1868?” [That is, the Court should have asked: Was the asserted right to an abortion “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)].

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

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

Joshua J. Craddick, Joshua J. Craddock, “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?,” Harvard Journal of Law and Public Policy, Vol. 40, No. 2 (2017).  Referenced at:  file:///C:/Users/diane/Downloads/SSRN-id2970761.pdf    [Abstract:  What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?

The late Justice Scalia famously argued for the latter position and pledged he would strike down a federal ban on abortion. But is this view consistent with the original meaning of the term “person”? Using originalist interpretive methods, this paper argues that preborn human beings are legal “persons” within the meaning of the Fourteenth Amendment.]

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(MODEL) RESOLUTION to Support & Encourage State Nullification Bills

- 2016 (patriotic)

by Diane Rufino, February 21, 2019

I wrote the following Model Resolution in support of the various grassroots organizations I volunteer with, in support of the Tenth Amendment Center and its work, and in support of the doctrines of Nullification and Interposition which are the true rightful remedies to push back against over-reach and abuse of power by the federal government.

I shared this Resolution with my state representatives in the North Carolina General Assembly, several of whom know their history and support Nullification, and I know they will continue to introduce bills that reject federal intrusion on the state’s Tenth Amendment reserved powers. In submitting this Resolution to them, I explained: “As the 7th most populous state in the country, we don’t need to, and should not, ignore any action of the government that exceeds the powers delegated under the Constitution. If we intend to set our country right, the focus must be on challenging its constant and historical abuse of power, divesting it of power that it has usurped over the years from the states and the people, pushing it back within the confines of the US Constitution, and re-establishing the essential balance of power between the States and federal government that is so critical for the preservation of liberty.

I hope other states will consider re-asserting their sovereignty and adopting Nullification bills. As US Supreme Court Chief Justice John Roberts wrote in the 2012 Healthcare opinion, NFIB v. Sebelius: “The States are separate and independent sovereigns. Sometimes they have to act like it.”

RESOLUTION TO SUPPORT & ENCOURAGE NULLIFICATION BILLS

PURPOSE:

This Resolution is introduced out of respect and in deep affection to the state of North Carolina, which holds a distinguished place in American history for being a leading force for freedom and liberty and the ideals upon which the independent united States were established.

The Declaration of Dependence set forth the ideals upon which our newly-free and independent States were established and upon which our newly-free and independent nation came into existence.  It reads, in paragraph two:

“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…..   “

This Resolution is intended to put checks in place, in the rightful depository, which is the State government, in order to make sure the federal government doesn’t abridge the rights of the individual and to help prevent it from “becoming destructive” of its ends so that the People will not feel the need to alter or abolish it. North Carolina, and indeed every other state, should always take care to preserve the constitutional equilibrium between the general and the State governments.

Finally, this Resolution intends to re-affirm North Carolina’s commitment to freedom and liberty, as envisioned at our Founding.

RESOLUTION:

Whereas,  the Union was established by a social compact, which is a specific type of agreement (or contract) established by people in deciding their form of government;

Whereas, as such, a social compact has rights. responsibilities, benefits, obligations, and remedies just like any other contract;

And whereas, as such, a social compact, like any other agreement or contract, retains the meaning and intent at the time it was entered into – until such time it is legally amended; in other words, a social compact, like any other agreement or contract, is interpreted according to the plain meaning and understanding of its terms and provisions at the time it was entered into, as well as the intent of those words and provisions and the intent of the compact in general);

And whereas, a compact, like any other agreement or contract, is never considered a “living, breathing document” such that its terms and provisions can be altered, broadened, manipulated, ignored, or given new meaning with successive generations by a judge or a court, or even by one of the parties to that agreement/contract;

Whereas, the social compact that created the Union (the united States, later the United States) was the US Constitution; the US Constitution was, and is, a compact between and among the states, on behalf of its People, creating a general government to provide for the common defense and a regular and free trade zone among the states, with limitations on its powers that are defined, consistent, and predictable, for the free exercise of individual freedoms (which is the definition of liberty). The general government created by the compact is not a party to the compact but a “creature.”  As such, and aside from the federal courts’ duty to offer an “opinion” to the other branches on the constitutionality of bills, the States, as parties to the compact, have an equal right to judge for themselves the administration or maladministration of the government’s delegated powers or its assumption of powers not specifically delegated and thus usurped;

Whereas, the Supreme Court, in United States v. Butler, established the proper inquiry to be made in interpreting the powers delegated to the federal government under the Constitution: “The question is not what power the Federal Government ought to have but what powers in fact have been given by the people.”  [United States v. Butler, 297 U.S. 1, 63 (1936)];

Whereas, a constitution is the act of a people constituting a government and assigning it delineated authority to govern; a government without a constitution is power without a right, and a government that enacts legislation without express authority to do has enacted a nullity, having no legal force or effect on the people;

Whereas, Chief Justice John Marshall, in writing the opinion for the Supreme Court in Cohens v. Virginia, acknowledged: “The people made the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will.”  [Cohens v. Virginia, 19 U.S. (6 Wheaton) 264 (1821)];

Whereas, the Constitution is an exercise of Individual Sovereignty; it is People’s Law; it is an instrument by the People and for the People, to restrain the government and especially to restrain the government as it touches on the lives of the People and their Property;

Whereas, the purpose of a written constitution is to bind the several branches of government by boundaries, which, when they transgress, their acts shall become nullities [Thomas Jefferson: Notes on Virginia, 1782];

Whereas, every act of the federal government that exceeds the power and authority granted to it is immediately null and void, a nullity, and unenforceable (this includes an act of Congress, an executive order, rules and regulations promulgated by a regulatory agency, a federal policy, and even a court opinion);

And whereas, any federal law, policy, executive order, action, or federal court opinion that exceeds any power delegated to the branches of the federal government by the US Constitution is an abuse of power and an act of government tyranny;

And whereas,  a federal law, policy, executive order, court opinion, etc without a foundation in legal authority is unconstitutional and therefore, null and void and unenforceable;

Whereas, Thomas Paine articulated this foundational legal doctrine in his pamphlet “Constitutions, Governments, and Charters (1805) when he wrote:  “A constitution defines and limits the powers of the government it creates. It therefore follows, as a natural and also a logical result, that the governmental exercise of any power not authorized by the constitution is an assumed power, and therefore illegal”;

And whereas, Alexander Hamilton further articulated this doctrine in his essay, Federalist No. 78:  “Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid”;

And whereas, as Chief Justice John Marshall reaffirmed the same in the landmark case Marbury v. Madison (1803): “The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void that courts, as well as other departments, are bound by that instrument.”  [Marbury vs. Madison, 5 U.S. 137 (1803)];

Whereas, the question becomes this: When the federal government oversteps its authority and assumes powers not expressly delegated to it, how is the usurpation to be addressed so that its unconstitutional law, policy, executive order, court opinion, etc is not enforced on We the People who are entitled to be protected by the Constitution? A constitution is, after all, only a piece of paper. It cannot enforce itself. Checks and balances among the executive, legislative, and judicial branches, a prominent feature of the Constitution, provide little guarantee of limited government, since these three federal branches can simply unite against the independence of the states and the reserved rights of the people;

Whereas, we know the federal government will never police itself or deny itself any power it believes it should have (heck, most representatives don’t know the Constitution) and we can’t trust the federal courts to address the abuse by an honest interpretation of the Constitution (That is precisely what Jefferson warned William Branch Giles was already happening in 1825: “It is but too evident, that the three ruling branches of [the Federal government] are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.”);

Whereas, Thomas Woods, author of the book Nullification: The Rightful Remedy, wrote: “If the federal government has the exclusive right to judge the extent of its own powers, warned the Kentucky and Virginia resolutions’ authors (Thomas Jefferson and James Madison, respectively), it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power”;

Whereas, according to our Founders and Framers of our Constitution, the states (state legislatures) are the proper parties to check the power of the federal government. Only the states are powerful enough (state sovereignty; dual sovereignty, Tenth Amendment) to prevent the federal government from holding a monopoly on Constitutional interpretation;

Whereas, the federal nature of our government system provides the most powerful of checks and balances on the tendency of the federal government to concentrate and expand its powers;

Whereas, by its very words and intention, the US Constitution represents a federal system whereby the sovereign powers of government are split between the States and the federal government. With respect to the express and limited responsibilities listed in the US Constitution, the federal government is sovereign and supreme, and in all other respects, the States and the People are sovereign.  This critical balance provides the foundation of the Constitution, is the most important of our Checks and Balances, and essential for the preservation and security of individual liberty;

Whereas, Alexander Hamilton made this point clearly in his essay Federalist No. 26:  “The State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.”;

Whereas, Thomas Jefferson pointed out the same in a letter he penned in 1811: “The true barriers of our liberty are our State governments; and the wisest conservative power ever contrived by man, is that of which our Revolution and present government found us possessed.”  [Letter to A. L. C. Destutt de Tracy, 1811];

Whereas, North Carolina’s own James Iredell, as a justice on the first Supreme Court, discussed federalism his opinion in the case of Chisholm v. Georgia, (1793), which law schools teach is the first important reconsideration of the meaning of the federal system. Iredell noted: “Every state in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign;…each state in the Union is sovereign as to all the powers reserved.”   [Chisholm v. Georgia, 2 U.S. 419 (1973)]

Whereas, even as recently as 2012, the Supreme Court acknowledged this important and critical relationship: in the Healthcare opinion, NFIB v. Sebelius, Chief Justice John Roberts wrote: “The States are separate and independent sovereigns. Sometimes they have to act like it.” [NFIB vs. Sebelius, 567 U.S. 519 (2012)];

Whereas, Justice Anthony Kennedy, in 2011, explained why federalism is so critical to maintaining the precious balance of power between the federal government and the States: “Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” [US v. Bond, 564 U.S. 211  (2011)];

Whereas, the Tenth Amendment was added as a “further declaration” of the federal nature of the government and a “further restrictive clause” and ensure that the federal government would be limited to the objects expressly delegated to it. The Tenth Amendment reads: “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”;

Whereas, our Founders warned of the tendency of governments to become ambitious, to consolidate their powers, and in doing so, to burden the liberty rights of their citizens, and they advised and tasked the States to be eternally vigilante with respect to the actions of the federal government, to call out every abuse and infraction of its powers and demand redress, and to be eternally protective of their reserved sovereign powers;

Whereas, Thomas Jefferson, in addressing the first glaringly unconstitutional acts of the federal government (the Alien & Sedition Acts, most obviously the Sedition Act), drafted the Kentucky Resolutions of 1798 to articulate the doctrine of NULLIFICATION as the proper remedy to address the usurpation. He wrote: “That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress..”;

Whereas, James Madison, in a companion set of resolutions known as the Virginia Resolutions of 1798 articulated essentially the same: “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”;

Whereas, Jefferson and Madison, in those documents and in others and especially in subsequent ones, explained in clear terms that it is the States, as parties to the compact (US Constitution), who have the right and duty to check the federal government’s powers;

Whereas, Thomas Jefferson explained, in his Kentucky Resolves of 1799, why the States had the right to judge for themselves when the federal government assumes undelegated powers: “That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who adminster the government, and not the constitution, would be the measure of their powers.”;

Whereas, Jefferson then went on to explain in the Kentucky Resolutions of 1799 what action the States should take: “: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a NULLIFICATION, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy….”  [It was in this document that the word “nullification” entered our lexicon];

Whereas, Jefferson and Madison, in the Kentucky and Virginia Resolutions and in other documents and writings, explained that NULLIFICATION is the RIGHTFUL REMEDY to address federal over-reach, abuse, and acts of tyranny. Simply put, Nullification in the American sense, is the doctrine whereby the States, as parties to the compact (US Constitution), have the right and duty to notify the federal government of its abuse of powers, to publicly announce those acts as “unconstitutional,” and then to prevent them from being enforced;

Whereas, the state of North Carolina acceded into the union of States on November 21, 1789 by ratifying the Constitution, It entered the union as an independent and sovereign state;

Whereas, with its accession, North Carolina did not enter into a position of unlimited subordination to the general government, but ceded only certain enumerated and defined powers, reserving to itself the residuary mass of rights to self-government (which was established by the limited and express delegation of powers to the federal government and then restated in the Tenth Amendment);

Whereas, in debating whether to ratify the Constitution, it first rejected it outright for its failure to include a Bill of Rights. Only when Rep. James Madison introduced a Bill of Rights to the first US Congress on June 8, 1789 and then said Congress adopted those amendments on September 25, 1789 did North Carolina finally agree to ratify the Constitution and join the union;

Whereas, a Bill of Rights was incorporated as the first ten amendments to the Constitution, with amendments one thru eight (1-8) recognizing certain liberty rights that the federal government would be bound to respect and would not be permitted to regulate (ie, to deny, abridge, burden, or chill), amendment nine recognizing that the People have other liberty rights not specifically articulated, and amendment ten re-affirming the federal nature of the government system and re-affirming that the federal government is one of limited and express powers while the States retain all others (the “reserved powers”);

Whereas, the Preamble to the US Bill of Rights explains the great importance of our first ten amendments. It states: “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution;

Whereas, the “beneficent ends” included in the Preamble refer to the intention of the States to respect their sovereignty and to preserve Liberty, the very thing they fought the Revolution for;

Whereas, time has shown that the limited language of the Constitution, and even the “further declaratory and restrictive clauses,” have failed to achieve their specified intent, which is the constraint of the federal government;

Whereas, since the ratification of the US Constitution, the federal government has been permitted to hold a monopoly on constitutional interpretation; the federal courts have happily done their part to re-interpret that document and to enlarge the powers to the federal government. Since the ratification of the US Constitution, the language and intent of its various articles, sections, and clauses have been incrementally and systematically misinterpreted, reinterpreted, misconstrued, mal-applied and or simply ignored through federal executive, legislative, and judicial usurpative action (resulting in a transformation that should have been legally accomplished according to the amendment process of Article V);

Whereas, the result has been the transformation of the government in DC into one much different than what was created by the States (the parties to the compact which was the US Constitution), and one that no longer serves the States as it was intended;

Whereas, the federal government, through its consolidation of power, instrumentalities, and monopoly over the federal courts, has increasingly entrenched upon the essential balance of sovereign power among itself, the States, and the People, to the great disservice of the latter two.  The balance of power has tilted too far and for too long in the direction of the federal government and it is time to restore that balance. The result has been the usurpation of sovereign power from the States and the People, including the People of North Carolina, and that usurpation has become palpable.

THEREFORE, let it be RESOLVED that North Carolina recognizes what is at stake (with respect to the enjoyment of the individual liberty that our founding generation fought and died for) when the federal government is unable or unwilling to abide by the limits of power as imposed by the Constitution and will accept its rightful role in resisting federal over-reach and unlawful usurpation and in restoring said government back to its constitutional limits.  North Carolina takes the warning given by Samuel Adams very seriously: “Let us contemplate our forefathers and posterity; and resolve to maintain the rights bequeathed to us from the former, for the sake of the latter. – Instead of sitting down satisfied with the efforts we have already made, which is the wish of our enemies, the necessity of the times, more than ever, calls for our utmost circumspection, deliberation, fortitude, and perseverance. Let us remember that if we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom. It is a very serious consideration, which should deeply impress our minds, that millions yet unborn may be the miserable sharers of the event.”

And it FURTHER be RESOLVED that in recognition of the rights and duties imputed on the States under the compact known as the US Constitution, in recognition of its right and duty to re-establish the rightful balance of power between itself and the federal government under the Tenth Amendment, in recognition of its right and duty to secure and defend the liberties of its people, the state of North Carolina asserts its right and duty to review each action of the federal government for over-reach and abuse and to determine whether said action is unconstitutional; and if said action is indeed determined to be unconstitutional and abusive of the US Constitution, North Carolina reserves its right of Nullification – to declare said action “null and void” and to ensure, in any and every way possible, that said federal action is not enforced upon the people of the state;

And it FURTHER be RESOLVED that the North Carolina Legislature will enact Nullification bills as needed to address federal over-reach and to protect its people from being subjected to them.

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

 

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

(Photo Credit – Prevent Disease website)

by Diane Rufino, February 22, 2019

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

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

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

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

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

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

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

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

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

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

Justice White wrote, in his dissenting opinion:

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

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

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

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

Justice Rehnquist dissented with these views:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The 14th Amendment reads:

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

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

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

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

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

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

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

Craddick wrote:

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

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

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

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

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

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

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

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

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

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

We need to stop the killing fields.

 

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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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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