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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.

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laughing baby

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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Motion to ‘Recall’ and Vote on Fetal Heartbeat Bill Tabled

On Monday evening, Sen. Mark Pody (R-Lebanon) invoked Senate Rule 63 for SB 1236, the Senate version of the “fetal heartbeat” bill, in an attempt to bring the bill to the full Senate after the Senate Judiciary Committee voted the week before to study the bill this summer.

However, Sen. Jack Johnson (R-Franklin), the Republican majority leader, moved to table the motion and Speaker McNally then quickly called for a voice vote on the motion to table and ruled that the tabling motion had passed. In doing so, Speaker McNally and Republican Majority Leader Johnson denied Sen. Pody his “right to be heard after the motion to table is made and before said motion to table is put to vote,” as provided in Senate Rule 48.

So, as of now, the Judiciary Committee will hold hearings on August 13 and 14 to learn more about the bill.

Sen. Pody tweeted on April 23, “Thank you so much for the thoughts and prayers for The Heart Beat Bill. We will be working to save the lives of these babies in Summer Study.”

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Amazon, Other Companies Seek Defeat of Tennessee Pro-Family Legislation

Amazon is one of a number of companies that have signed a letter asking Tennessee legislators to defeat legislation it deems anti-LGBT, including Family Action of Tennessee’s School Protection Act and another bill that would provide conscience protections for adoption and foster care child placement agencies that, based on their religious convictions, choose to place children in those homes where the child will have a mother and a father.

The letter, which was coordinated by the Nashville LGBT Chamber of Commerce and a national organization, Freedom for All Americans, made a veiled threat that economic consequences will result from such legislation.

Additionally, Nike is one of 11 companies signing a similar letter coordinated by the Human Rights Campaign.

While these companies have every right to express their beliefs, let’s be sure that their influence is not disproportionately felt. Let your legislators know how you stand on these issues and then take the time to thank them if they vote consistent with your values.

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Pregnant woman and heart beat monitor

‘Fetal Heartbeat’ Bill Suffered from ‘Congenital’ Defects

Monday night, the so-called “fetal heartbeat” bill was put on life support and transferred to a meeting of the Senate Judiciary Committee this summer. There’s much not to like about what happened on this bill, particularly some of the parliamentary maneuvering. Lots of pro-life Tennesseans are incensed. But the bottom line is that the bill was birthed, legislatively speaking, with a ‘congenital’ political defect. Here’s the not-so-pleasant truth.

Defect No. 1—A Really Bad Start

The bill got off to a bad start. I’ve previously said why that is so, but the bottom line is that the version of the bill passed by the House was so poorly done that even I would not have defended it in court, let alone our risk-averse, jurisprudentially moderate attorney general.1

Unfortunately, a bad start is hard to overcome because, politically, a poorly written or poorly documented bill is the version that sticks in everyone’s mind as the bill goes forward.

As with people we meet, first opinions are hard to overcome, particularly when it comes to a bill’s constitutionality. Non-lawyer legislators, just like their constituents, don’t find it easy to understand why some words or phrases make a bill constitutionally defective, but others, perhaps not seeming that different, now make it constitutionally defensible.

Defect No. 2—Confusion and Overlooked Information

At 3:27 on Monday afternoon prior to the start of the 5:00 p.m. session when Senator Mark Pody’s motion to bring the bill to the Senate floor was to be voted on, I had a veteran senator call me. This senator thought the motion was to bring up the House version of the bill. He didn’t realize Sen. Pody had presented a completely different version of the bill to the Senate Judiciary Committee.

That’s a real problem when the thing the legislator thinks he or she is voting on is said to be unconstitutional by every lawyer you know. Sadly, I suspect there were other senators who were in the same position.

Moreover, I suspect few, if any, of the senators who were not on the Judiciary Committee had gone back to listen to testimony that had been offered to the nine members of that committee in support of the bill. I doubt any of them had read the written transcripts of the testimony I provided to the committee. I suspect they were going off what they’d been told about the constitutionality of the bill as it was a couple of weeks ago. (Refer to Defect No. 1, above.)

That sounds outrageous, but let’s be honest with ourselves. It’s hard to expect someone to meet with constituent groups off and on all day, attend committee meetings in between, go to constituent receptions in the early evening, and still have time to read the bills that are coming up the next day. To do that, a legislator has to work into the night. I did a lot of that, but session just grinds you down, and it becomes physically impossible to keep up.

That’s why lobbyists are important. They relay to legislators the latest information about a bill, make sure legislators know what they are voting on, and answer any questions legislators might have.

Defect No. 3—Going It Alone Is Hard

But, in the case of the “fetal heartbeat” bill, the organization that would normally handle that work on pro-life legislation was not in favor of the bill. It was not going to do anything to help toward the bill’s passage.

Given that our organization already had its agenda set before session started and this bill popped up, our one regular lobbyist had to follow through with the legislators we’d asked to work on our issues. Nothing will ruin a lobbyist’s effectiveness like leaving a sponsoring legislator hanging. We just had no capacity to take on the ton of work it takes to lobby another bill, particularly such a major bill.

I did put off the other work I had been directed to do by my board in order to provide Sen. Pody with a legal justification for his amended bill; however, the bottom line is that the House and Senate sponsors originally went forward with the bill knowing they had not sought any organizational lobbying support, and any presumption that they thought such would not be necessary proved wrong.

Defect No. 4—Leaving the ‘Heartbeat Bill’ Defenseless

In my effort to assume, for now, the best of the Republican senators, I told Sen. Pody that there was a sure measure of wisdom in not enacting a bill that the attorney general would not defend in court. This is particularly problematic since the only alternative in that case would be for the two Speakers to agree to hire outside counsel. Speaker McNally was not going to take my word on whether the bill was constitutionally defensible over that of the attorney general. I can appreciate that. Sen. Pody, to his credit, appreciated this problem and tried to get a letter from Liberty Counsel agreeing to defend the bill if passed, but there just wasn’t enough time.

Can the Defects Be Overcome?

Now, the question is whether those senators who on Monday professed their pro-life bona fides on the floor and those who have since professed them to disgruntled pro-life constituents will do what needs to be done this summer to make sure this bill is given every opportunity to pass in January and will garner their votes.

What has happened is that opponents of the bill this year have now laid their political bed among pro-life voters, and they will have to sleep in it.

Continuing to say, as some have done, that “this bill isn’t strong enough” or “this isn’t the right vehicle” is going to ring hollow with pro-life voters next year if they don’t attend the summer hearings to learn for themselves the constitutional bona fides of the bill or at least offer some of their campaign and leadership PAC funds to pay for the expenses of legal experts who will come testify in support of the bill.

But if they don’t do those things, then in my book they need to come up with their own different and better vehicle, or give a credible, legally demonstrative explanation for why any attempt to seek Roe’s reversal is a constitutionally foolish errand.

Time will tell as to how pro-life this Republican majority is in the Senate, but this year time was not on the side of those pro-life activists who wanted to be leaders in the effort to overthrow Roe v. Wade, not just wish the best to others.


NOTES

  1. I do not say that in a pejorative way. I think the attorney general would agree that my jurisprudential philosophy and understanding of constitutional interpretation and, particularly, my more limited view of the judicial power are more conservative than his.

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.