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The Fundamental Abortion Question Isn’t What You Think

I have listened again to all the legal testimony presented to the Senate Judiciary Committee in connection with the overhauled version of the “heartbeat” bill. There is a sense in which the fundamental issue isn’t whether one believes in a “right to life” or in a “right to abortion.” That view of the matter is too small and too narrow.

The real issue our governor, legislators, and attorney general must answer is whether they still believe in the rule of law. That expression or the variation we often use—no one is above the law—is the real issue.

I will demonstrate why neither the pro-abortion nor pro-life attorneys opposed to the amended Senate bill really believe in the rule of law.

Testimony of Heather Shumaker, National Women’s Law Center

After Heather Shumaker, an attorney with the National Women’s Law Center and the mother of at least one child, gave her prepared remarks, Senator Janice Bowling asked her,

What I would ask you as you are talking about rights of the woman, when would you think that the unique individual . . . that grew in your womb . . . , that baby, had any rights?

Ms. Shumaker’s answer:

I’m here specifically to speak to the constitutionality of or lack thereof of this particular measure as well as the harms that I believe will be felt by the women of Tennessee should this bill pass. I don’t have a bright line point to answer your question.

Senator Kerry Roberts, probably dumbfounded by the inability of a lawyer to provide a “bright line” rule-of-law type answer to a constitutional question, said, “When you sat down, you said you were here to speak as a woman, too. So I believe you are free to answer [Senator Bowling’s] question if you choose.”

Her response, then, to Senator Bowling’s original question was,

Well, then, my answer to that question would be I think that is for the pregnant person to determine.

When Sen. Roberts said that as a lawyer she couldn’t just walk into a courtroom and say that every woman gets to decide when another human being has rights, Ms. Shumaker clarified that this was her personal opinion as a woman.

In other words, as a lawyer, she had no “bright line” to suggest to a court or legislative body as to when a human, natural person has any rights, and, as an individual, in the context of a pregnancy, she said the rights of the human being in her womb, distinct in every way from her, depended on her autonomous decision.1

That is what we call arbitrary law, and arbitrary law is the antithesis of the rule of law.

As mentioned last week, for the rule of law to exist with respect to human or civil law, then it must be based on an underlying law that contains these three elements:

• Immutable—not one thing today and another thing tomorrow or next week or next year,
• Uniform—can be applied in all legal/constitutional situations such as property, tort, criminal law, and regulatory law, and
• Universal—not one thing in California and another in Tennessee or one thing in a courtroom and another in a legislative chamber.

Heather Shumaker has effectively testified that she does not believe in the rule of law.

But that also means that she can’t believe in any real legal rights. Real legal rights must be based on a law that is real, and her testimony shows that she doesn’t believe in any real law. She only believes in legal opinions.

Is There a Difference Between Ms. Shumaker and the Right to Life’s Attorneys?

No. That there is no real difference in the understanding of law between the pro-life opponents of the amended Senate bill and Ms. Shumaker is demonstrated by something told to me by a person in one of the overflow rooms where the hearing was being streamed over the internet.

This person said fifty percent of those in the room were dressed in black, supporting Planned Parenthood. When the pro-life testimony in favor of the amended bill concluded and Mr. Bopp, attorney for National Right to Life, got ready to speak, most of the crowd in black left.

Why would they do that? Because he was going to make the same legal or constitutional arguments as the lawyers on their pro-abortion side.

Do These Pro-Life Attorneys Believe in the Rule of Law?

Now, I would not want to say that the two pro-life attorneys who testified against the bill don’t verbally profess a belief in the rule of law. I’m sure they would. However, as is often the case, even as with me at times, there can be a disconnect between what we say we believe and what our actions show we really believe.

What the pro-life attorneys opposed to the bill believe in more than the rule of law is what former Supreme Court Justice Oliver Wendell Holmes said about law in his 1897 Harvard Law School essay, The Path of the Law:

The object of our study [of the law], then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts. . . . Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise. . . . If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.

In other words, following Darwin’s Origin of the Species in 1859 and the introduction into Harvard’s law school of an evolutionary worldview, there are no immutable, uniform, and universal foundations for law because there is no Being outside of us upon which such could be said to exist. That’s why the “new . . . legal thought” was simply to develop skills in predicting what the next evolution in the “law,” if any, might be.

Holmes’ “bad man” view of law is that all anyone really wants to know and all “the law” can really tell us is what the “instrumentality of the courts” is likely to do or not do to us if we do or do not do certain things. Whether the ruling is just or unjust, morally right or morally wrong according to “conscience” is irrelevant.

Thus, the only thing the Right to Life attorneys could or would talk about is U.S. Supreme Court opinions regarding its 14th Amendment jurisprudence and how hard it is to get five justices to agree with you. Any rule of law argument for protecting life based on the Ninth Amendment was merely “clever” in the words of National Right to Life’s attorney, apparently meaning it lacked any real legal substance.2

Want Proof?

When asked if he agreed with the legal arguments made by one of his friends in a law-review-quality article published last year in the Georgetown Journal of Law and Policy setting forth, according to its title, “A Hypothetical Opinion Reversing Roe v. Wade,” Paul Linton, counsel for National Right to Life’s state chapter, said, “I was generally favorable about what he wrote. . . . I like the approach he took. But I don’t think we have the votes now. . . .”3

Governor Lee and our legislators need to understand that the legal practice and opinions of these pro-life attorneys are based more on a Holmesian view of the law than the rule of law.

I don’t fault them for having this view of law, because that is what I was taught in law school, too, and it is what most law schools teach. It is easy not to see that this view of law makes U.S. Supreme Court justices “God” in place of the real God. But this view of law means the opinions of Supreme Court justices are to be feared throughout the land, not God’s judgments, as should be the case. (See Psalm 119:120.)

What, Then, Shall We Do?

As I said last week, a rule-of-law lawyer does not disregard the opinions of those before whom he or she will argue. But that lawyer knows that to argue with a fool according to his folly is to become like the fool, foolish (Proverbs 26:4). The rule-of-law lawyer also knows the better course is to answer the fool’s folly in the way it deserves to be answered (Proverbs 26:5).

In this context, I think those two verses mean this: Force the constitutional argument on life and abortion away from Holmesian folly, represented by the U.S. Supreme Court opinions embodying its 14th Amendment jurisprudential folly, to one based on the rule of law.

Why is that important? Because, as Ms. Shumaker makes clear, the pro-abortion lawyers have no answer to a rule of law question other than a completely arbitrary one. And the only way to make this question the focus of any lawsuit over the legislation is to frame the issue strictly in terms of the rule of law, nothing else.

They trust in Roe. It is their stronghold. It must be attacked.

Unfortunately, the pro-life lawyers opposed to the amended bill are afraid to attack it, to which I would reply, along with Solomon, “A wise man scales the city of the mighty, and brings down the trusted stronghold” (Proverbs 21:22, NKJV; see also Mark 3:27).

And why might the wise man not be afraid to attack the stronghold? Doesn’t sound wise to the natural person. Sounds like sure defeat.

For me, Solomon’s final words in Proverbs 21 give the answer, “Victory belongs” not to the slickest lawyers and those most able to predict what men will do, “but to the Lord.” After all, as Solomon said earlier, the wise are to “trust in the LORD with all [their] hearts, and lean not on [their] own understanding” (Proverbs 3:5, NKJV).


NOTES

  1. If forced to discuss the “other rights” to which the Ninth Amendment refers and their founding in the common law, I suspect Ms. Shumaker will be hard pressed to give a response to what William Blackstone said about the absolute right to life in his Commentaries on the Laws of England: “This natural life, being, as was before observed, the immediate donation of the great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority.” It would be good for the pro-life attorneys opposed to the bill to consider the use of Blackstone’s view of life in its 1997 decision in Washington v. Glucksburg, rejecting the application of Planned Parenthood v. Casey’s “liberty right” concept to state laws prohibiting assisted suicide and, in particular, its footnote 10, “Sir William Blackstone[‘s]. . . Commentaries on the Laws of England not only provided a definitive summary of the common law but was also a primary legal authority for 18th and 19th century American lawyers . . . .” Abortion is worse than assisted suicide in that the physician is not helping take the life of the party wanting to die but rather taking the life of a third party based strictly on another party’s “own authority.” This is Ms. Shumaker’s view of things, and it is an arbitrary view of the person and of life.
  2. Mr. Bopp, attorney for National Right to Life, expressed his outright contempt for and skepticism about the applicability of common law to constitutional interpretation saying the “common law can’t trump the U.S. Constitution,” though I’m sure he’s familiar with the Glucksburg decision and many others in which the court has looked to common law and Blackstone in particular to interpret the U.S. Constitution.
  3. One of the most galling things about Mr. Linton’s testimony was his statement that in 1992, in the case of Planned Parenthood v. Casey, the U.S. Supreme Court “adhered” to the “central holding” from Roe “that the state may not prohibit abortion before viability. They haven’t backed away from that. We need to see some signs of [their] willingness to cut around the edges and back off, I think, before we have a frontal attack.” I don’t know how he could say that and legislators believe him. The day before I had provided them these words from Justice Ginsburg’s blistering dissent from the majority’s 2007 opinion in Gonzales v. Carhart, which upheld Congress’ ban on partial birth abortions:”Today, the Court blurs that line, maintaining that ‘[t]he Act [legitimately] appl[ies] both previability and postviability because . . . a fetus is a living organism while within the womb, whether or not it is viable outside the womb.’Though these statements in Gonzales have not been disavowed by the U.S. Supreme Court in any case since then, neither of the pro-life attorneys opposed to the bill discussed it relative to their Holmesian predictions for reasons that are beyond me. However, I do understand why the pro-abortion attorneys didn’t discuss it. It’s bad news if the viability standard is ever directly attacked.

RELATED VIDEOS

The Arbitrariness and Lawlessness of Current Abortion Law

Attorney Against TN Heartbeat Bill Fails to Provide Logical Argument

TN Right to Life’s Paul Linton Responds to Sen. Roberts on SB 1236

Bopp Warns Supreme Court Not Ready to Overturn Roe


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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The Elephant in the (Abortion Hearing) Room

The Senate Judiciary Committee’s two-day hearings were the best and most significant hearings I’ve been part of in my more than twenty-five years in state politics. Many statements from pro-life and pro-choice witnesses against the bill deserve comment, because, to the constitutionally untrained ear, they seemed to score great points against the legislation. But all the comments from both sides boil down to one issue that is never discussed. To me, that issue was the proverbial elephant in the room that the party of the elephants can’t avoid.

There were two camps in the room. One, it seems to me, believes in real law and the rule of law enough to argue for it, and the other seems to be focused on politics, either electoral or legal (judicial).

I won’t dwell on those interested in electoral politics—what might or might not happen at the ballot box. In my view, focusing only on politics has brought us to the sorry political mess in which we now find ourselves.

But I am interested in the intersection of law and the rule of law vis-à-vis judicial politics. The Senate Judiciary Committee and the people of this state have to decide between these two approaches to the abortion issue, knowing the legislation enacted in this country for the last 46 years has applied the latter approach rather than the former.

The Difference Between the Rule of Law and Judicial Politics

THE RULE OF LAW

The rule of law approach says that there is a form of law that has a “natural” force in the sense that it bears down upon us and cannot long be ignored or escaped without consequences.

This type of law precedes the positive enactments of legislative bodies and the positive pronouncements of judicial officers. In fact, it is the foundation upon which all human positive law should be based and to which it should conform if the law is to be just.

Martin Luther King Jr. spoke to this kind of law so eloquently in his 1963 “Letter from a Birmingham Jail.” Former Ambassador Alan Keyes spoke to this forcefully and eloquently at the hearing on Tuesday.

The roots of this law, still applied today in any number of common situations, is ancient. For example, consider what Cicero, a Roman statesman and lawyer who, in vain, tried to uphold republican principles in the final civil wars that destroyed the Roman Republic, said:

True law is right reason in agreement with Nature. [I]t is of universal application, unchanging and everlasting; it summons to duty by its commands, and avers from wrongdoing by its prohibitions . . . It is a sin to try to alter this law, nor is it allowable to attempt to repeal a part of it, and it is impossible to abolish it entirely. . . . And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one rule, that is, God, over us all.

Only this kind of understanding of the nature of law allows for a rule of law, because this foundational law is not one made up in a legislative chamber or a courtroom and could have been made up differently.

It was, as Cicero realized, transcendent law in the sense that it is an immutable and universal governing law imposed on us from outside ourselves. In the case of Cicero, it was imposed by the deity he understood as God, and in the case of the United States, it was the Creator referred to in the Declaration of Independence. Some today just refer to it as natural law, also referenced in the Declaration of Independence (“the laws of Nature and Nature’s God”).

A NECESSARY ELEMENT FOR THE RULE OF LAW TO EXIST

One thing required by the rule of law or that is part of what we must mean when we refer to the rule of law is there is a uniformity relative to the underlying principle of law on which human laws are to be built—not one underlying law now and another underlying law later, and not one underlying law in Athens (Tennessee) and another in Rome (Georgia).

THE RULE OF LAW IN AMERICA

This understanding of law carried into American law from our British forebears is called common law. As indicated by the quote from Cicero, the common law was the product of centuries worth of work (and war) relative to those things we had come to understand as fixed, immutable, and true about ourselves as individuals and in society with others.

THE RULE OF LAW IN THE U.S. CONSTITUTION

Law professor Adam MacLeod, an expert in the common law, gave testimony that supported everything I just said. But he also spoke to the three primary ways (indicated by numbered brackets and bold text) in which the common law and the rule of law were reflected in the U.S. Constitution:

The [1] Bill of Rights marks off certain rights as beyond the competence of Congress to alter or abolish [Sounds like Cicero, doesn’t it?]. And much of the Bill of Rights has now been incorporated also against state legislatures through the [2] Fourteenth Amendment. But as the [3] Ninth Amendment makes clear, the enumeration of certain common-law and natural rights does not deny or disparage all the other rights that the American people enjoy by virtue of natural law and their ancient customs. Chief among these is the right to life. An absolute right is one that a person enjoys prior to government, vested in him or her by the laws of nature, simply by virtue of being human.

JUDICIAL POLITICS

On the flip side, judicial politics minimizes the import or value of the rule of law and its relation to the U.S. Constitution for the sake of considering only court opinions and how many pro-life or pro-abortion votes may exist on the U.S. Supreme Court.

THE VALUE AND LIMITS OF JUDICIAL POLITICS

To disregard judicial politics is foolish, as the pro-life lawyers opposed to the bill repeated ad nauseam. Sometimes you know a majority of the U.S. Supreme Court’s current justices don’t believe in the rule of law as it has been described. That’s when you lay low.

What is foolish, however, is making prideful assertions about what the rule-of-law-composition of the Court will be at the time any law enacted now finally reaches that Court. Only God knows that.

Furthermore, judicial vote prognostications have proved unreliable anyway.

Why Didn’t Judicial Prognostication—Justice Vote Counting—Work?

The testimony from one of the two pro-life lawyers against the Ninth Amendment argument told the committee that judicial vote counting had not worked. In 1992, in Planned Parenthood v. Casey, the pro-life lawyers thought that past legal and opinion writing from the justices indicated that Roe would be reversed. However, Justice Kennedy joined two other Republican-appointed justices—O’Connor and Souter—and two other Republican-appointed justices, Blackmun and Stevens, to produce the judgment enjoining the enforcement of pro-life laws there in question. That’s five Republican-appointed justices who turned out “pro-abortion”!

Why didn’t Kennedy or one of these two other Republican justices side with the other four dissenting justices (three of whom were Republican appointees) and overrule Roe?

Justice O’Connor’s opinion, in which Kennedy and Souter joined, gave us a clue:

Coming as [this new litigation] does after nearly 20 years of litigation in Roe’s wake we are satisfied that the immediate question is not the soundness of Roe’s resolution of the issue, but the precedential force that must be accorded to its holding.

Let me paraphrase for you what she was saying: “The issue of whether Roe struck the right balance between the ‘state’s interest’ and ‘the strength of the woman’s interest’ was not directly challenged by your legislation. Therefore, we really don’t have to reexamine ‘the soundness’ of Roe, and thus we won’t.”

Judicial Politics Playing Out in Tennessee

Here is how judicial politics played itself out this week. One of the pro-life lawyers against the bill acknowledged that even under the existing 14th Amendment jurisprudence, a good argument could be made that would allow the Court to overrule Roe. It was actually in a national publication by Georgetown University and dedicated to that witness. The witness even said he was writing an amicus brief to that effect, “but,” he said, “I don’t think we have the votes now.”

Not sure I know the value of writing an amicus brief when, as he just told senators, he’s convinced that a majority of justices can’t be swayed by his argument, but here is the larger point: We know how vote counting turned out in 1992 when there were eight Republican-appointed justices on the U.S. Supreme Court but Roe wasn’t directly challenged by a rule of law argument. It didn’t work.

Yet the pro-life lawyers against the bill told pro-life senators that they should continue to use this tactic.

The Republican Elephant in the Room: Judicial Politics or the Rule of Law?

To my knowledge, not one of the pro-life lawyers opposed to the bill testified that the five “conservative justices” currently on the Court don’t care anything about the rule of law.

I actually believe Justices Roberts and Kavanaugh care about the rule of law and will face with integrity a rule of law challenge to Roe.

But that kind of rule-of-law challenge does not exist as long as legislation does not put Roe directly at issue, and we keep arguing, as was done in Casey, within a 14th Amendment jurisprudential framework.

In fact, we know that Kavanaugh said to the U.S. Senate that Roe was precedent, and it is from a strictly 14th Amendment analysis perspective. On that much I agree with the pro-life lawyers who argued against the bill. That’s why I advised Senator Pody to ground the Senate bill in the Ninth Amendment, and then rewrote it that way.

The Ninth Amendment is a means by which to assert the common law and the rule of law but do so in the context of a different constitutional provision. The common law and rule of law reflected in the Ninth Amendment will create a conflict with the arbitrariness of the U.S. Supreme Court’s 14th Amendment abortion and personhood jurisprudence.1

There is a rule of law conflict, because in every area of the law—criminal, tort, and property—the state has the authority to recognize the right-bearing capacity of unborn persons, just not when it comes to one thing, abortion. That arbitrary distinction as to when a known living human being is a person is an offense to the rule of law.

If a Republican legislature isn’t willing to make the Court decide this issue on the basis of the rule of law because it doesn’t think the Court cares about the rule of law either, then heaven help us; we are lawless.


NOTES
1. This Ninth Amendment line of argument was pejoratively dismissed by one of the pro-life lawyers against the bill as being only “clever.” He even said with prideful audacity that if it were a good argument, then over the course of his 46 years of work on this issue, he would have known about it. Perhaps a focus on judicial politics takes one’s eye off the rule of law and finding arguments based on that. But then, as I warned the senators beforehand to expect, he returned to arguing 14th Amendment jurisprudence as if it controlled and applied to the Ninth Amendment, and he did so in the admitted absence of any case authority to support such an assumption. Professor MacLeod made it very clear that Roe and Casey were not “controlling or binding precedent” for a Ninth Amendment argument, and no one opposed to the bill on either side contradicted his statements regarding personhood under the common law. Being stuck in a 14th Amendment box in which one sees no means of escape and no tools from within to use in breaking out is, indeed, a terrible place to be when one is pro-life.

RELATED VIDEOS

NOTE: After clicking on each of the links below, in the pop-up window, click on the “Watch this video on YouTube”:

The Arbitrariness and Lawlessness of Current Abortion Law

TN Right to Life’s Paul Linton Responds to Sen. Roberts on SB 1236

Bopp Warns Supreme Court Not Ready to Overturn Roe


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.

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Shining the Light on Roe v. Wade and the ‘Heartbeat’ Bill Controversy

Next Monday and Tuesday the Senate Judiciary Committee will hear lawyers wrangle over the constitutional defensibility of a so-called “fetal heartbeat” bill. The version of the bill passed by the House is a ‘heartbeat’ bill. Contrary to what you probably believe, the Senate is not considering a ‘heartbeat’ bill. Here is what you need to know.

I will testify in favor of the Senate version of the bill. I did not support the House version of the bill. At the end of this commentary is a picture that shows what I’m talking about, but first, you need a little background history.

A Little History on Roe and Casey You May Not Know

In Roe in 1973, the U.S. Supreme Court said it didn’t know what a person was, so the unborn could not be declared by state governments to be persons in the eyes of the law relative to abortion and protected from abortion from conception. Consequently, the state had only an interest in protecting “potential life” and that kicked in only at some point prior to birth.

This point was called viability, but it did not mean simply an objective determination of the presence of a living human being as opposed to a non-viable or dead one. This would be what we would call a medical diagnosis concerning the existence of a condition, here, a pregnancy and the existence of a second human life.

However, Roe picked a more subjective understanding of viability, something like what we would call a medical prognosis. It meant a subjective determination of the unborn child’s likelihood of survival outside the womb, with or without medical technological assistance.

What was particularly galling to the pro-life crowd was that Roe said the state had no interest in protecting human life until then, and thus, could not regulate abortion at all during the first trimester.

Then in 1992 in Casey, five justices could not agree on the constitutional reason for enjoining enforcement of the abortion regulation there in question. That, by itself, should tell you something about the soundness of the reasons given for the judgment in Roe.

The conflict among the five was that, contrary to Roe, three of the justices—O’Connor, Kennedy, and Souter—thought the state had a “substantial interest in potential life throughout pregnancy.”

Here is what this looks like:

Roe's framework flowchart

The Particular Problem with the House Bill

Unfortunately, the House bill accepts the reasoning of Roe and Casey that the state’s interest is only in potential life and not from the point at which that life is known to exist. It also accepts the reasoning in Roe and Casey that a subjective prognostic determination of viability should continue to be used.

The only real difference between Roe and Casey and the House bill is that the House bill says that the prognostic meaning of viability should be based on when a heartbeat is detected, not on when the unborn child can survive outside the womb. The argument is that once a heartbeat is detected, the unborn child, if not aborted, will survive to term and become a person in the eyes of the law.

Basing an abortion law on the detection of a heartbeat has good political optics and makes for a great bumper sticker—“Abortion Stops a Beating Heart”—but to simply say to the U.S. Supreme Court the prognostic meaning of viability we want you to use is better than yours is to ask the Court to substitute one subjective prognostic measure for another. And it seems rather arbitrary to say one is better than another except that one will save more lives than the other.

Of course, I support that end result, but in my view, agreeing to the legal logic of Roe and Casey makes it easy for the Court to apply Roe and Casey to the House bill. Reversal of Roe under those circumstances will look like the only thing that changed was the composition of the Court, something that makes Justice Roberts ill and will make Justice Kavanaugh nervous.

What’s Good About the Senate Bill

I like that the Senate bill confronts the Court with the legal foundations of Roe, which no legal scholar thinks was sound, and makes them justify it. It rejects the subjectivity of the Roe/Casey viability standard and says that abortion is prohibited once it is objectively determined that a life exists, which may be prior to the detection of a heartbeat. Human Growth Hormone levels may indicate the existence of a living human prior to then.

But what I really like is that the Senate bill is unique and different from the ‘heartbeat’ bills passed in other states in one very important regard. It puts forward a constitutional basis for the law that has never been before the Court, namely, the state’s power, implicated by the Ninth Amendment, to protect those “other rights” referred to in the amendment and not already “enumerated” in the Constitution.

What Are Those Other Rights and Where Do We Find Them?

Law professor Adam MacLeod, a friend of mine, will testify on Monday that those other rights can be found in the common law, those “laws” that derive their “force” among us not from legislative enactments backed by the power of the sword, but from such a long course of development over centuries that we know them to be true and real.

One of those was the right to life, and the common law recognized that the child in the mother’s womb was treated as a person for any number of purposes, just as we still do in every area of law but abortion.

The Ninth Amendment envisions that government, created to secure our rights, could continue to make secure our rights even if not enumerated in the Constitution as such.

Basing the proposed law on the Ninth Amendment creates a collision course between the Ninth Amendment and the 14th Amendment.

No court has ever had to render a judgment on this conflict; therefore, no opinion has ever been issued to tell us how that conflict should be resolved. So, any lawyer who tells you the opinions in Roe and Casey are controlling because the issues are the same is just wrong. The issues are not the same. So I will urge the Senate to adopt the amended Senate bill or one like it.

In my view, it’s time to make the Supreme Court decide what it has not been required to decide for 46 years. The science of prenatal life is now on our side. The law has always been on our side, and abortion’s view of the person has become increasingly isolated from and inconsistent with the rest of legal reality regarding prenatal life.

The truth we always knew was suppressed in Roe to reach a politically desired result. It’s time to bring the truth into the light.

flowchart of how House and Senate view Casey

 


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Will Legislators Take a Consistent Approach to Abortion and Marriage?

Three bills filed in the General Assembly—two on abortion and one on marriage—point out how hard it is to find a consistent principle by which to govern. Here’s what I think needs to be done.

Two Approaches to Reversing Roe v. Wade

The two abortion bills would make it a crime for a physician to perform an abortion except in limited circumstances. All the legislative sponsors of the two bills want to see Roe v. Wade and its progeny overturned and authority of abortion matters returned to the states.

One bill is called the fetal heartbeat bill because it would make the criminal sanction and the limited exceptions thereto applicable once a child’s heartbeat is detected. The other bill would make the sanction applicable only after the U.S. Supreme Court “overrules, in whole or in part, Roe v. Wade” and its progeny, “thereby restoring to the states their authority to prohibit abortion.”

The fetal heartbeat bill seeks to push for a reversal of Roe by imposing a limit on abortion greater than any the U.S. Supreme Court has had to rule on in the past. The hope is that the new law will provoke a lawsuit that will, in time, wind its way to the U.S. Supreme Court and arrive at a time when the Court is willing to reverse Roe.

The second bill, known as a “trigger law,” imposes a limit on abortion only if the law of some other state is challenged and the decision, in that case, results in Roe being reversed.

There have been times when I thought the second approach was the only plausible approach. The Court was decidedly more liberal than it is today, the popular culture was not as pro-life as it today, and legislative bodies were not applauding infanticide legislation that outrages the sensibilities of an overwhelming majority.

If you think public sentiment can’t influence justices, then pretend you didn’t ever hear Justice Ginsburg say she thought America was now ready for same-sex “marriage.”

Pushing the Envelope on Roe

While the “trigger law” should be passed, these changes in the court and public sentiment have led me to think it’s also time to push the envelope and precipitate a situation that will require the U.S. Supreme Court to re-evaluate the constitutionally unsupportable rationale employed 40 years ago to support the decision in Roe.

Of course, the Supreme Court may continue to uphold the right to abortion, but it is very unlikely the Court will go in the direction of making it harder for states to enact abortion laws. The standard by which the constitutionality of abortion laws are now judged—Does the law unduly burden abortion?—is as low as it can go without the Court reducing the standard to the lowest possible standard—Does the law have a rational basis?

So, at this point, I don’t see much to lose other than simply losing. But not to try is a de facto loss anyway.

But notice this: Neither abortion bill seeks to “nullify” the Supreme Court’s rulings on abortions or tells prosecutors to ignore those rulings and prosecute abortionists anyway. Legislators know they can’t just ignore a bad decision by the United States Supreme Court.

Moreover, the fetal heartbeat bill is a testament to the fact that legislators know they must come up with some approach to abortion that has not been tested and ruled on yet in order to get a case back to the U.S. Supreme Court.

Legislators know that a bill treating Roe as a nullity would be slapped down as unenforceable by a federal district court and the decision upheld by the U.S. Court of Appeals for the 6th Circuit faster than Gov. Bill Lee can say to the state’s Treasurer, “Please pay the Planned Parenthood’s legal fees for having to sue our state.”

If legislators really believed they could nullify and ignore a U.S. Supreme Court opinion, surely legislators in our state would have done so any number of times between the 1973 Roe decision and now.

How This Applies to Marriage

But the reasons that lead legislators to look for ways to work around Roe and not just ignore it apply with equal force to the new bill on marriage.

That bill says, “No state or local agency or official shall give force or effect to any court order that has the effect of violating Tennessee’s laws protecting natural marriage.” Thus, it’s a bill purporting to “nullify” the U.S. Supreme Court’s constitutionally unsupportable decision on marriage in Obergefell v. Hodges, and it just won’t fly.

That’s not to say that nothing can be done about Obergefell. But the same principled approach to it must be taken as is being taken with the fetal heartbeat bill. I’ve been working on that principled approach and that work is almost done. Stay tuned.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Fetal Heartbeat Bill Pushed Back a Week

House Bill 108, sponsored by Rep. Van Huss, which would make it illegal to abort a baby once a fetal heartbeat is detected through ultrasound, has been pushed back a week in the House Health Subcommittee after an amendment was not filed in a timely manner. This bill would change the viability of the fetus from the current 24-week gestational period set from the Roe v. Wade Supreme Court decision to the first trimester, between six and 12 weeks.The attorney general opined this week that parts of the bill would be “institutionally suspect” under current Supreme Court interpretations of the U.S. Constitution. The companion bill in the Senate is Senate Bill 244, sponsored by Sen. Beavers.

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