Sharing Life — Abortion, Stem Cells, Euthanasia, Intelligent Design, Reproduction Technology

I can think of many reasons for the church not to announce support of Prop. 73. It is “political”, it is “contentious”, it is “worldly”, it is “not the Church’s business”, it is “irrelevant to God’s predestined plan of salvation and victory”, it is a matter of “private conscience”, it is “too sensitive”, it does not go “far enough” to address abortion, and so impliedly condones it. Most importantly, it is a good idea, but not a church priority. It is, in other words, on the other side of the boundary that separates church and state, faith and practice, heaven and earth. Things are peaceful this way, and so let’s just keep it this way.

That hundreds of thousands of human lives will be destroyed in California this year, that young women (and men) will be scarred deeply, maybe permanently by their choices to kill, that families will be weakened and insulted by the current law—let me be clear: None of that is the business of the Church. God did not mean in Matt. 22:37 to include the wounded and vulnerable unborn in the definition of “neighbor”. Those “foreign” objects in the wombs of strangers can be cast off to die at the roadside. We on the other hand must move on. We have to attend church, and we’re late.

Proposition 73 is on the ballot for November 8, 2005 in a California Special Election. The main features of the proposed law are:

1) Amends California’s Constitution, prohibiting abortion for unemancipated minor until 48 hours after physician notifies minor’s parent/legal guardian, except in medical emergency or with parental waiver.

2) Defines abortion as causing “death of the unborn child, a child conceived but not yet born.”

3) Permits minor to obtain court order waiving notice based on clear, convincing evidence of minor’s mmaturity or betst interests.

4)Mandates various reporting requirements.

5) Authorizes monetary damages abainst physicians for violation.

6) Requires minor’s consent to abortion, with certain exceptions.

7) Permits judicial relief if minor’s consent coerced.

For complete analysis by the Legislative Analyst, link to “Analysis“.

As I view this Proposition, it recognizes that families are the nucleus of our first level of suport, care, and counsel during difficult and stessful times. The Proposition not only protects minor children (both born and unborn) but it protects the family as the basic functioning unit of society. It is simply not compelling social policy for the government to take this prerogative from the family. Neither is there compelling logical argument that because some parents are totally indifferent or some families dysfunctional that the institution of the family is to be disregarded in its societal role to care for children.

Parents and all citizens of good will should ask: Do we want children ages 13 to 18 to carry the burden of an abortion decision without the involvement of parents?

Proposition 73 does not prohibit abortions, but it does implicitly recognize the emotional and psychological harm to children who decide to have abortions.

Nothing could be more fundamental to the inherent duty and right of parents than to care for and protect their children without interference by the State. Current laws permit chidren unlimited access to abortion without parental notice. The State, in other words, now conspires with stressed and frightened children to withhold from parents the opportunity to know if their children will be undergoing a serious medical procedure that will have profound ethical and personal consequences.

Do I hope this Proposition will reduce the numbers of abortions, and encourage the placement of newborns for adoption? Of course, I do. I believe abortion is a grievous wrong, and an abomination to God. I believe we practice it as we do because we are blinded by the darkness of our sinning. Yet, this Proposition can be embraced by “pro-abortion” advocates as well. Many of these persons state that they support a “woman’s right to choose” while not exercising that right themselves, or advocating it as a first choice. These persons can support this proposition because they recognize that their young daughters need help during a very difficult physical, emotional and spiritual challenge.

It has been said that all that is needed for the advancment of evil is that people of good intention do nothing. Not to vote for this Proposition will be to miss an opportunity to take back from the State the responsibility and right accorded to parents to care for their children, and for children to have the benefits of parents empowered to help.

THE NATION
No Embryos Lost to New Stem Cells
By Karen Kaplan
Times Staff Writer

October 17, 2005

Scientists say they have created viable embryonic stem cell lines without destroying any embryos — a development that could clear ethical barriers that have sharply restricted federal funding for the controversial research.

Two separate techniques were demonstrated in mice, and researchers are optimistic the processes could be replicated with human cells. The new methods were published online Sunday by the journal Nature.

Scientists and ethicists said the approaches offered a potential compromise with social conservatives who see embryonic stem cell research as an untenable trade-off that amounts to destroying life to create medical cures.

Dr. William B. Hurlbut, a member of the President’s Council on Bioethics, said he had persuaded several religious and conservative philosophers that at least one of the new approaches was morally sound.

But given the intractable debate about when life begins, there are lingering ethical concerns.

Neither method “really quells the ethical debate,” said Dr. George Q. Daley, a professor of biological chemistry and molecular pharmacology at Harvard Medical School. “It’s not clear it’s going to answer all the critics.”

Protection of human embryos has been the guiding principle behind President Bush’s stem cell funding policy.

Bush was the first to approve federal money for the research, but he limited funding to the cell lines already in existence in 2001 to avoid having taxpayers subsidize the destruction of embryos. Scientists have said that only about 20 of them were usable.

Those lines, which have proven unsuitable for some research, were derived from frozen embryos donated by couples that no longer needed them for in vitro fertilization.

The federal restrictions have hampered scientists seeking to tap the therapeutic potential of embryonic stem cells, which have the capacity to grow into any cell type in the human body. Researchers believe, for example, that the cells might eventually be used to treat juvenile diabetes by growing replacements for faulty islet cells that make insulin.

Some researchers have moved forward by using private funds to create their own lines of embryonic stem cells. California has taken the most aggressive position, passing Proposition 71 in 2004 to provide $3 billion for stem cell research.

One of the new approaches reported in Nature is based on a routine procedure used by fertility clinics to look for genetic defects in embryos.

Dr. Robert Lanza, medical director of Advanced Cell Technology Inc. in Worcester, Mass., and an author of one of the papers, extracted a single cell from a mouse embryo that developed in the laboratory into an eight-cell bundle.

After removing the cell, called a blastomere, Lanza’s team surrounded it with human embryonic stem cells from the Bush-approved lines, allowing the mouse cell to pick up the appropriate biochemical cues to start behaving like a stem cell.

Using 125 blastomeres, they were able to create five cell lines that tests found had the same properties as embryonic stem cells.

To demonstrate that the single-cell biopsy posed minimal risk to the embryo, seven-cell mouse embryos were implanted into surrogate mothers. They resulted in live births 49% of the time, virtually the same as for the regular eight-cell embryos.

Lanza said human stem cell lines could be created using single cells extracted for genetic diagnosis at in vitro fertilization clinics.

In a laboratory dish, the extracted cell would be allowed to divide into two. One cell could be screened for genetic defects and the other used to create stem cells, he said.

“It’s relatively simple,” Lanza said. “It does not damage the embryo, and it’s been used on thousands of healthy babies.”

The other approach, developed by MIT biologist Rudolph Jaenisch, relies on deactivating a gene needed to implant an embryo into a uterus.

Jaenisch altered mouse DNA and inserted it into an egg whose own DNA had been removed using a common stem cell procedure called nuclear transfer.

Because the resulting embryo could not attach to the uterus, it would have no chance to develop into a healthy baby, thus presumably avoiding any ethical quandary. Hurlbut, the presidential advisor, strongly backs this approach.

After the DNA insertion, the egg was prompted to begin developing and stem cells were harvested a few days later.

To complete the experiment, the researchers turned the silenced gene back on. The resulting stem cells demonstrated the same abilities as traditional embryonic stem cells.

Scientists say this approach is attractive because it offers the ability to tailor stem cells to specific patients.

Although the process is cumbersome, scientists would probably be willing to do it to qualify for federal funding, Jaenisch said.

But both methods still present some ethical hurdles.

Some scientists believe that a single human blastomere may be able to develop into an embryo, throwing Lanza’s method into the same ethical terrain as conventional stem cell methods, said Daley, the Harvard professor.

He said that Jaenisch’s method seemed like no more than a cosmetic solution.

“A process that dooms an otherwise normal embryo to later demise” may not “answer all the critics,” Daley said.

Dr. Irving L. Weissman, the director of Stanford University’s stem cell institute who wrote a commentary accompanying the Nature papers, said the new methods amounted to “a diversion of good science by politics,” but that the trade-off would be worth it if it would speed the delivery of therapies to patients.

Hurlbut, the member of Bush’s bioethics panel, said the new research might at least spark a debate about what would make embryonic stem cells ethically palatable to all Americans.

“We need an answer,” he said.

On October 14, 2005, Dr. Harry Jaffa lectured at The Trinity Law and Trinity Graduate Schools in Santa Ana, CA on “The Moral Foundations of the Law”.

Dr. Jaffa is one of the original founders of the Claremont Institute and author of numerous books including “A House Divided” and “A New Birth of Freedom”.

I arrived early at this seminar just as Harry Jaffa arrived in an entourage of two Claremont McKenna College students who had acted as his chauffeurs. Jaffa appears frail, and somewhere in his 80s, but he remains intellectually engaging and immensely knowledgeable on matters of history and political science. His most recent book, “A New Birth of Freedom” traces the principles of natural law in the context of Lincoln’s arguments for constitutional equality of the black race.

These arguments have a quaint feel about them in a society in which even Justice Scalia, a conservative, dismisses the Declaration of Independence as irrelevant to constitutional interpretation. This point is not lost on Jaffa, who notes that the Declaration is one of the nation’s 4 recognized sources of “organic law”. Organic law is derived from four central legal documents in U.S. History: The Northwest Ordinance, the Articles of Confederation, the Declaration of Independence, and the U.S. Constitution. These documents cumulatively state our abiding principles as a civilized society, and set the framework by which we are to govern ourselves.

Jaffa relaxed a few moments before his lecture, noting that the trip from Claremont was long, slow, and uncertain. His student’s car, with a history of overheating, made the trip only by running the heater to release excess heat. Jaffa is apparently unable to drive, or unwilling at his age, and so unsteady on his feet that he required the assistance of his students to climb the four steps to the entrance to Trinity. Yet, he was energized during the lecture itself, repeatedly declining to rest or take a break, until much younger law students initiated a break for themselves. Meanwhile, Jaffa spoke and answered questions for nearly 3 hours of uninterrupted time on his feet, and remained animated with the subject of natural law and the current (and prospective) U.S. Supreme Court.

Jaffa, and probably every conservative academic in the U.S., takes a fatalistic position: Roe v. Wade is likely to stay the law, and die a slow death by increasing limits on its availability as the law shifts to accord the States greater power to decide the protections to be accorded to unborn human life. Jaffa believes the correct Constitutional outcome is the right interpretation of federalism, that is, that the decision of the right to life, or the right to terminate pre-born life, rests with the States.

I questioned Professor Jaffa on this point. If the 14th Amendment requires the States to apply principles of due process of law as a condition of depriving “citizens” of life, then is not the U.S. Supreme Court authorized to conclude that preborn human life is a “person” under the law. Are not the States then mandated to provide equal protection of the laws to “unborn” persons as well as “born?

Jaffa answered the question obliquely: Lincoln, he noted, made two arguments: African Americans were indeed persons within the meaning of the words: “We hold these truths to be self-evident . . . that all men are created equal”. The other argument, strangely inconsistent with the first argument, was that African Americans were not thereby to be considered politically equal for all purposes. By that he meant that in the interest of preserving the Union, he was prepared to allow the Southern States maintain the institution of slavery. He was however unprepared to allow it to spread to the territories and new states. As a condition of Statehood, the Congress would preclude any law allowing Slavery in the new State. In this way, Jaffa told me, as best I can infer, that the realities are such that overturning Roe v. Wade will not occur outright, but with time its intellectual and legal underpinnings can be removed, until it collapses as precedent.

I later asked Jaffa another question, since I continued to be troubled at the idea that an ethical question of first magnitude could be resolved based by political compromises. I asked him to imagine the state of affairs resulting from his suggestion that the U.S. Supreme Court defer the question of what is “personhood” under the law to the individual states. The result will be that different states will hold different positions, and “personhood” and the “right to due process” will depend on the accident of geography for the hapless infant. The morally unsustainable result will be that a “person” carried in the womb in one state will become disposable biological “property” of the mother as she crosses into another state to obtain an abortion. Only if the U.S. Supreme Court finds that the unborn child is a person under the law can the nation achieve moral and legal integrity. The States then would be required to protect the lives of unborn children with the same equal protection of the laws afforded all citizens.

Jaffa acknowledged the patchwork result, and it ethical implications, but again, I sensed he talked obtusely to the “realities” of the last 30 years of precedent and the unlikely action of the Court to reverse its earlier statements that Roe was woven into the fabric the culture too tightly to be unwound. Again, Jaffa was ready to take whatever ground a compromise might offer: perhaps a waiting period, or a mandatory disclosure of alternatives to abortion, or other restriction as might be enacted by an individual state. California, on the other hand, would be free to continue as it does: offering unlimited access to abortion through the 9th month.

In the end, Professor Jaffa’s lecture left me with this question: if we state that human life is entitled to dignity, then what is the measure of “dignity” to be accorded to unborn human life? There is no logical or scientific justification for a double standard of dignity for pre-born and post-born human life. Helplessness has never been an impediment to dignity. To the contrary, helplessness is the test of dignity, for dignity is intrinsic, not earned or conditional. Human dignity is first expressed by the protection of the laws against abuses of power by the enfranchised against the weak and voiceless. This is the great calling of the law, and the highest trust given to the Court. It is the spirit and heart of our nation that “equal opportunity” to life and prosperity is accorded to all without regard to status, wealth, or lineage. Each “person” is to be accorded the opportunity to realize and use his natural talent, skill, and drive to achieve his measure of happiness. This opportunity is constitutionally the right of the unborn, and to the extent Roe v Wade states otherwise, it fails as moral law.

The word “apologetics” in its Greek origin means “to explain or account”. In Theology, it is used to mean “to provide a defense of the Faith”. In a world of skeptics and a culture openly disdainful of God, “apologists” are busy.

A not so new argument against God is that he doesn’t exist because He is not perfect, and because He is not Perfect, He is not eternal or all-powerful. Evil you see implies things are askew, out of control, and ultimately chaotic. A God who created evil, or is even subject to it, is out of control, and therefore not God.

I recently attended a Biola University lecture in a series entitled “Christian Apologetics”` The speaker, with the aid of a Power Point presentation, took us through the “apologies” or arguments for the defense of God. Frankly, I can’t think of a higher calling than to be God’s defense attorney. That I have a law degree and nearly 30 years of litigation experience only adds to the hubris. However, I suggest a word other than “apology”. It seems a bad start to “apologize” for God. Theologians, I’m convinced, live in an insular world and are therefore unconnected to the language of the people. So they use terms like “apologetics”, “providential”, “election”, “sin”, “grace”, “born again”, “salvation” and “redemption” without regard to whether those terms help or hinder the “average Joe” in his struggle to know God.

So, what is the Case for God? The “prosecution” presents a mound of evidence that there is evil in the world. That evidence is loud and convincing, and covers horrendous misdeeds. After hearing centuries of murders, rapes, power grabs, beatings, deprivations, and loveless relationships, the Court raises its hands in exasperation, and declares that the evidence is cumulative and unduly time consuming. Turning to the Defense, the Court asks for a stipulation that truly there is evil in the world, and not just trivial evil, but such evil as turns the blood cold. I so stipulate, and we move on.

Now the burden of proof shifts to me. What is the case for God? Here are the notes of my lecture at Biola:

1. God made an evil world because an evil world permits the free assertion of moral action. That is, what is the merit of ethical conduct in a world that does not challenge the “good”? The argument then is that a sinful world is better than a sinless world because only in a sinful world does “goodness” have meaning. Now, in heaven, as opposed to earth, “goodness” is the soup of the day, and there is no evil in heaven. To the contrary, we are incapable of evil in heaven. How then do we know of “evil” in a perfect heaven? The answer is that we acquire the knowledge of evil without the disposition to do it because God has conformed our character to be like his own. We have real choice in heaven, but the conditions of our soul produce only one outcome: to honor God. Thus, our new natures in heaven can produce only good, and evil is not possible.

2. The second argument I will refer to as the “humble pie” argument. I love this argument, because with a little reflection, it is powerfully persuasive: Is my human capacity and knowledge sufficient to contain, grasp, and account for all possible explanations for evil in the world? That is, if I reach a conclusion based on the available evidence and by use of my available mental powers and my limited experience, may I then conclude that only those reasons I have generated are among the plausible? Add to this refreshingly humble approach that there is abundant evidence in Creation for the existence of a Creator, and that His creation is “good” or at least has many numerous “good” tendencies. In the law, we consider burdens of proof as matters of degree. We know that in a “case” there are facts and arguments for both sides on an issue. The question is never one of “no evidence”. The question is: What degree of persuasion does the evidence present? The scales may be tipped by a “preponderance of the evidence” for one side or the other. Based on that balance, juries by supermajority come to conclusions as to the “probable” truth. Stated simply, the balance of evidence, particularly in the thinking of Intelligent Design, is that there is a wonderful and awesome Creator behind Creation. Some would say the evidence is “clear and convincing”, or even “beyond a reasonable doubt”. We are like children when it comes to proof of God. We conduct our daily lives based on degrees of persuasion, but when it comes to God, we want absolute proof, and we want it now. Yes, we are like children. Further, while I may in my own powers reason to a definition of a “good God” who conforms to my idea of the world based on my human, mortal perspective, it may be that God is bigger than that.

Conclusion: We underestimate God continuously. As I have heard, God created man in His own image and man has ever since been busy returning the favor. Our hubris is amazing. We cannot grasp a God who knows all that is, including all the possible other universes that could be, but are not, and Who knows all there is to know in one instant, without regard to linear time. Still, having only an infinitesimally small piece of the evidence, and only a minuscule intellectual ability to process even that evidence, we proudly assert conclusions that a god who does not conform to our notion of God is no god at all. We are like Job’s accusers in the Book of Job, offering up various definitions of what and who God is, and spinning theories to account for the reality of evil that assume a “reasonable” God would see things our way. We do not so much make a case that God is “evil” as we make the case that God is “unreasonable”. As God responded to Job: Who are you to be my counselor? Were you there when I laid the foundations of the Earth? This accusation turns the tables: It would seem that man, and not God, has the burden of proof. Perhaps it is we who should “apologize”.

The newly comprised U.S. Supreme Court will hear an abortion case in November: Ayotte v. Planned Parenthood, 04-1144. This case will reveal the thinking of our new Chief Justice, John Roberts, and possibly of Harriet Miers if she is confirmed by the full senate.

The case arises out of a “parental notification” law in New Hampshire. (CA will decide its own “parental notification law” by a ballot measure to amend the State Constitution on Nov. 8, 2005, as Proposition 73).

The Boston based 1st Circuit Court of Appeals ruled New Hampshire’s law unconstitutional because it didn’t include a provision excepting notification if required for the mother’s health, and because it allegedly stated too narrow an exception to protect the life of the mother. The case revisits the question: Are “life and health exceptions” required in a statute that restricting access to abortion? If so, are those exceptions to be determined by specific state standards or left entirely to the medical opinion of the mother’s physician? (Currently, the a “health” exception is required constitutionally, and the exception is left completely to the discretion of the mother’s physician, so that the state is unable to set any medical standards or threshold findings as a condition of the abortion).

What is a “high achieving” person? As a member of the legal profession for nearly 30 years, I have witnessed a dramatic shift in the opportunities of women to enter the profession. Perhaps 5 or 10% of law school classes were female in the mid-seventies when I attended. Now the ratio is 50:50. The numbers of judges, including the two occupying the Supreme Court, has increased as well. Women occupy 43% of the associate and senior positions in law firms, and 17% per of the partner positions. While a disparity suggesting gender discrimination exists, the numbers reflect real progress in the equality of opportunity.

During this same time, families have disintegrated, with divorce in CA exceeding 50% of all marriages, and abortions occurring in 1 of 4 pregnancies. The economy, and the drive to “have more” of the “American Dream”, have produced stressed out couples, both working to pay the bills, while children are shuttled to day care and act as “latch key” kids until exhausted parents get home.

Men are asked to be more nurturing and less providing and protective, in the interest of gender equality. Women are asked to work long, grueling hours while their infant children are cared for by nannies or low paid child care center employees. Guilt and separation anxiety become the order of the day.

An article on the Front Page of the New York Times this month states some research findings that anger “high achieving” women of the 70s who have paid the price for their status in the business world today. This article, entitled: “Many Women at Elite Colleges Set Career Path to Motherhood” by Louise Story, collected the responses of young women at Ivy League colleges who stated they were unprepared to sacrifice motherhood and child nurturing in order to pursue high-pressure careers. They concluded that “having it all” was just not realistic or good for children and families.

A legal newspaper I read, the Los Angeles Daily Journal, covered the responses of “40 and 50 something” female attorneys to the N.Y. Times article by Story. These “women’s liberation” women did what they were driven to do, and did it at whatever cost it required: they were determined to be both “supermoms” and “super lawyers”. Now, a younger generation questions their sacrifice. They are naturally defensive. These women point out that large firms hiring top notch women lawyers have created liberal maternity leave policies and flexible hours, permitting the development of both a family and a career. These older women fear these new attitudes will undermine the hard won successes of women in the last decades.

So, who is correct? Is the issue as simplistic as the choice between the docile and demur mother & “little housewife” of the 40s and 50s or the supercharged executive “mom” of the 21st Century? I find it ironic that the persons most arguing for individual freedom of choice become most reactive when increasing numbers of very bright young women decide to exercise that choice differently than an earlier generation. These older women seem to be in denial of the social and relational carnage of the past 3 decades.

The politicians routinely resurrect their calls for “family values” each election cycle, yet where are the family friendly policies that are needed to support the family? Where are the funds and social programs that give mothers and fathers greater flexibility to adjust their hours for their children, and where are the corporate policies that provide “on site” day care so that parents may be in touch with their children throughout the day. Where are the liberal maternity and paternity leave policies that permit parents to be with their newborns during the critical first year of bonding and development? Where are the financial incentives and training needed to bring accessible, top quality child care to desperate parents? Where are the Churches that need to speak out for the protection and integrity of family relationships? Where is the “women’s movement” in seeking the right of mothers to stay with their newborn children during the time needed for mother-child bonding and nurturing?

Until a “high achieving” person is defined in our culture to include the quality of parenting and nurturing, we will not be the “high achieving” nation we are called to be. Until then, each couple will have to “travel to the beat of their own drummer’ to paraphrase Thoreau. A generation of young women appears to be defining differently and for themselves just what is “the good life”.

Any woman who is pregnant and in need can turn for help to the pro-life movement. She never has to feel that abortion is the only option. Publicize these helpful phone numbers, through which people anywhere in the country can find assistance. Pastors may want to place one of these numbers in their Church bulletin, and church offices should be ready to give out these numbers to persons making inquiry. Parents need to talk openly with their children before a pregnancy crisis, providing these numbers to their children early on. The reality is that children will otherwise more likely find a number in the phone book, internet, or a “friend” that connects them to someone ready to kill their child.

Carenet/Heartbeat 1-800-395-HELP
Crisis Pregnancy Helpline 1-888-4-OPTIONS
Birthright 1-800-550-4900
National Life Center 1-800-848-LOVE
Bethany Christians Services 1-800-238-4269

The following article describes another ready option, “No Questions Asked” under the Calfornia Safely Surrendered Baby Law (Other States have similar provisions):

TRUCKEE - Five months after being given up by his mother at Tahoe Forest Hospital’s maternity ward, Nevada Baby John Doe is on his way to a permanent home.

Baby Doe, as he is called by the state, is one of two infants in Nevada County whose mothers relinquished custody under the California Safely Surrendered Baby Law. Designed to protect unwanted babies from injury or death after being abandoned in trash bins and public parks, the law allows parents of a newborn who wish to anonymously give up custody to do so at any hospital emergency room or other designated site.

In Nevada County, since the law was enacted in 2001, two babies have been turned in to safe surrender sites under the program - both of them at Truckee’s Tahoe Forest Hospital.

According to Ann Holmes Delforge, the hospital’s director of inpatient services, both women who surrendered custody of their babies had been concealing their pregnancies, a situation that happens more often than people think, she said.

The first mother to use the safe surrender program, Delforge said, knew of the law and gave birth in the hospital with the intent of leaving her child in their custody.

The more recent case in October involved a women who had also concealed her pregnancy, but did not have a plan for what she was going to do with her child after giving birth at Tahoe Forest Hospital. Hospital staff made the mother aware of all her options, including the safe surrender program, Delforge said. The mother ultimately chose to leave her baby at the hospital.

“The intent behind the law was to address, in California, the number of babies that were found in dumpsters and different places, and the mothers who are now being prosecuted,” Delforge said. “So they thought they could create a safe situation so if somebody does deliver an infant and really does not feel competent caring for that infant, that they could drop it off, keep their anonymity, and the baby would be OK and they would be free from prosecution.”

Delforge said in both cases in which babies have been surrendered in Truckee, having the option of safely surrendering the child was a positive thing for the mothers.

“It has been a good option. I think for both of those scenarios it really did meet the intent of the law,” Delforge said.

To meet eligibility requirements, babies surrendered must be 72 hours old or younger and the person surrendering the child must be a parent, legal guardian, or someone acting on behalf of the child’s parent or legal guardian.

As long as the child does not show signs of abuse or neglect, the person surrendering the child will not be arrested or prosecuted for doing so.

Local safe sites

“It’s still pretty rare in California to see these cases,” said Scott McLeran, a social worker with Nevada County Child Protective Services.

Within Nevada County, the Board of Supervisors is responsible for designating the safe surrender sites, and the law directs any fire station or emergency room countywide to accept surrendered babies. However, in Truckee and eastern Placer County, many fire stations have not put a plan in place for accepting infants because so many stations go unstaffed for long periods of time.

Once a child is surrendered to a designated safe surrender site, the staff at the location must contact the Nevada County Department of Child Protective Services within 48 hours of receiving the child, and at that point CPS will take custody of the baby and place him or her into foster care.

A 14-day cooling off period follows, during which the parents of the child have the right to request that their custody of the child be restored. It is a safeguard built in to the system to allow for post-partum depression, emergency situations and other potential factors that might convince a parent to surrender their child, McLeran said.

After that period, CPS will work to find the best long-term solution for the child, whether that be adoption, guardianship or long-term foster care.

Typically with newborns, Child Protective Services has no problem finding families willing to adopt the children in their custody, and according to McLeran, adoption is usually preferable because it is the most long-term solution. And in most cases, the foster family that has been taking care of the child will get the first shot at adopting the baby because that family has already bonded with the child.

As for the now-5-month-old Nevada Baby John Doe, adoption looks to be in his future, which will likely be decided at his April 14 juvenile court hearing in Nevada City.

Since January 2001, when the California Safely Surrendered Baby Law went into effect, 71 babies have been dropped off at designated safe surrender sites statewide as of December 2004, according to Andrew Roth, spokesman for the California Department of Social Services. An additional 111 babies have been abandoned elsewhere and found alive during that time period, he said.

This weekend I will be attending a “mens’ retreat”. The idea of “retreat” is different in the Protestant tradition, I’ve discovered. When I was a practicing Catholic, a “retreat” usually meant a contemplative experience punctuated by a monologue of teaching by a Jesuit priest acting as Retreat Director. We spent 3 days in silence, once a year, in a remote location. Even meals were taken in silence.

My last 12 years have been spent at Protestant “men’s retreats”. These events by comparison have a rambunctious quality, a sort of feverish intensity to reach God by praise and song.

Both experiences have their merits, and each brings me a step closer to God in the journey of a lifetime. I still have a foot in the contemplative tradition, and I find God sometimes most readily in the small space of a silent attention. But the Holy Spirit can just as readily appear to the sound of drums and and a thousand male voices offering their hearts in song. It seems to me God is always ready to meet us by the mile if we will reach for Him by the inch. He will assume the trappings of whatever occasion we present Him, so great is His love. All He asks is a heart eager to embrace the truth of scripture, and to surrender to His authority and primacy in our lives.

Life has this quality of intensity and withdrawal about it too. We sometimes are insistent and aggressive in our search for God, and sometimes we are passive and receptive. The irony is that in all this searching and reaching, God finds us rather than we finding God. It is as T.S. Eliot wrote:

We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time.

ATTRIBUTION: T. S. ELIOT, “Little Gidding,” last stanza, Collected Poems, 1909–1962, p. 208 (1963).

Discussion Between Senator Rick Santorum and Senator Barbara Boxer Regarding Roe v. Wade and the Partial-Birth Abortion Ban Act of 2003, September 17, 2003

Source Database: Information Plus: Abortion: An Eternal Social and Moral Issue

Table of Contents: Source Citation

On September 17, 2003, the U.S. Senate discussed the Partial-Birth Abortion Ban Act of 2003. The debate centered on the difference between the Senate version of the act and the version that had passed in the U.S. House of Representatives. The Senate had passed a version of the act that included an affirmation of the validity of the U.S. Supreme Court’s Roe v. Wade decision, while still banning the partial-birth abortion procedure. The U.S. House of Representatives passed a version of the act that lacked this language. During the discussion, Senators Barbara Boxer (D-CA) and Rick Santorum (R-PA) had the following exchange.

Mrs. BOXER. … Roe v. Wade says that you always protect the life and health of a woman. That is a basic disagreement you and I have.

Mr. SANTORUM. I appreciate the basic disagreement. I think we are allowed to disagree on our opinions. We are not allowed to argue and disagree with the facts…. Again, I am not challenging the remarks of the Senator that every life is important. But I think presenting accurate evidence is also important if we are going to have a discussion about what the case was. Let’s look at the case of abortion-related deaths. In 1942 there were 1,231; total maternal deaths were 7,267. Every single year, without fail, every single year, the total number of maternal deaths went down because medicine improved. The total number of abortion-related deaths went down…. The bottom line is that very few–given the number of pregnancies that were occurring in those years–very few women died as a result of “botched” abortions. The idea that thousands and thousands were–well, I will quote for you Bernard Nathanson, who was an abortion doctor at that time. He says:

How many deaths are we talking about when abortion was illegal? In NARAL [that’s the National Abortion Rights Action League] we generally emphasize the drama of the individual case.

You heard the Senator from California [Boxer] come back when I said the statistics are wrong.

We talk about the individual case, not the mass statistics. But when we spoke about the latter it was always 5,000 to 10,000 deaths a year. I confess I knew these figures were totally false and I suppose the others did too if they stopped to think about it. But in the morality of our revolution it was a useful figure, widely accepted, so why go out of our way to correct it with honest statistics?

The bottom line is we are making a policy decision based on, hopefully, factual evidence. I want to make that clear.

A couple of other things about what the Senator from California said and last night the Senator from Iowa said, that a majority of Americans support Roe v. Wade. Maybe if you asked the question, “Do you support Roe v. Wade?” a majority of Americans would say, “Yes, it is the law of the land.” Most people, if it is the law, generally comply with the law and so most people say it is probably fine, although if you describe what the law is without saying it is Roe v. Wade and ask if they agree, you find that a majority of Americans do not agree with Roe v. Wade.

In fact, there was a study done a couple of months ago by the Center for the Advancement of Women. Faye Wattleton, a very well known abortion rights advocate, formerly affiliated with Planned Parenthood–I believe the head of Planned Parenthood–instituted a study this summer, and they asked the question about abortion to women–not to men, to women. They found that 17 percent of women in America–this is a pro-choice group–17 percent of women in America said abortion should be banned, period–never legal. Another 34 percent said it should be against the law except in the case of rape, incest, and life of the mother. If you add 17 and 34–I will get one of the pages to add that up for me–it is 51; 51 percent of American women are either against abortion, period, or only in the case of rape, incest, and life of the mother, which if you ask people in this Chamber if you are against abortion except in the case of rape, incest, and life of the mother, you are considered pro-life. Most people in this Chamber who are pro-life are for the exception of rape, incest, and life of the mother.

So the majority of American women, according to an abortion rights group–who, by the way, described the results of this as “disappointing”–don’t agree with Roe v. Wade. A majority of American women do not agree.

Let me broaden that even further. They asked this question, as an option: It should be available but under stricter limits than now. In other words, it should be less available than Roe v. Wade allows. Add another 17 percent to that. Now we are up to 68 percent of women in this country who believe Roe v. Wade is wrong; 68 percent of women disagree with Roe v. Wade.

Now, the fourth category was: It should be generally available to those who want it. This is a very tricky thing. It should be generally available. It did not say, it should be what Roe v. Wade is, the law: It shall be available for any reason at any time. That is what Roe v. Wade is. This idea that this is a moderate, reasonable provision, Roe v. Wade, is nonsense.

Roe v. Wade and its subsequent decisions have established an absolute right to an abortion at any point in time. The Senator from California says the State can prohibit abortions, late-term abortions. I asked the Senator, and I have asked her more than once in these debates, and today–she has not provided any evidence–I asked her to give me one example where an abortion was stopped in this country under Roe v. Wade, an example where someone wanted an abortion and, because of the Supreme Court decisions, was barred. It does not happen. Why? The Senator says, well, there is this health exception that is very important. There always has to be a health exception.

Look at the Supreme Court cases that define what a health exception is. According to Doe v. Bolton, the companion case to Roe v. Wade, health means any health: Mental health, physical health, economic health, stress, distress. Anything that could possibly affect mental or physical health is a health exception.

What does that mean? This is an exception that swallows the rule. The health exception means that abortion is legal, period, up until the moment that the child is completely separated.

The point of the partial-birth abortion debate is the child is all but separated. The child is completely delivered except for the head. And you do not believe Roe v. Wade is extreme? Under Roe v. Wade, this Supreme Court said that 3 inches from separation still is covered by Roe v. Wade. At 38 weeks, 3 inches from being born, you can still kill your child.

It was interesting, when the Senator from California went through the different options a woman has. She said you can deliver your child and take it home, you can deliver your child and give it up for adoption, or you can terminate the pregnancy. She did not say–she used the term “child” in the first two instances, but in the third instance it is “terminated pregnancy,” as if the child does not exist.

The third option is to kill your child. That is the option. It is very stark. It sounds rather cold, chilly, but it is.

In the extreme nature of Roe v. Wade, if really known by the American public, these numbers I have been reading would be even higher–this 30 percent that says it should be generally available.

If you ask the question, should it be available for all circumstances at any time up to the moment of separation, including up to 39 1/2 weeks, I daresay the number of people who would be supportive of Roe v. Wade, which is the law, would be in the very low double digits and, I would hope, single digits. But I don’t know that. I have not seen any polling on that because no pollster asks the question of what the law really is. They put it in fuzzy terms to gather more people. But even with this fuzzy language, even written in a way for the pro-choice groups to get the best number they possibly can, two-thirds of the American people oppose Roe v. Wade.

I find it remarkable the Senator from Iowa last night got up and called my opposition to this extreme when two-thirds–I said of people, two-thirds of American women–say what the Senator from Iowa is doing is extreme, is wrong, is not what they believe. He does not represent them. His extreme views–and they are extreme, not by my definition, not by my morality, not by my theology, but looking at what the American public believes. Extreme means out of the mainstream, on the edge.

If you look at the polling data now on abortion, Roe v. Wade is on the edge; it is not where the American public is. One of the reasons for that, I happen to believe, is medical science. I saw a TV commercial the other day of what I think is called the 4-D sonogram, where you can actually see these 3- or 4-D images–I don’t know what they are–but color images of a child in the womb. I saw an article in the paper talking about how they can see a baby in the womb smile and have facial expressions. It gave rise to a study or discussion as to whether children of the womb feel pain, or how much.

It is very hard for the American public–and I know this is a battle that people usually internalize, and most people do not talk about abortion–when they see those images, see this little baby in the womb. There is a commercial. It is a GE commercial, and I thank them for the courage to run the commercial.

I know it was incredible the amount of heat they got. From whom? From these organizations that call themselves women’s rights organizations, pressuring General Electric to pull the ad.

These are women’s rights organizations that don’t want women to know what is going on within their own body, but they are women’s rights organizations. They want to hide facts from the very people they want to, “give rights to.” They don’t want them to see. They want to keep the deception to the very people whose rights they say they are protecting.

But General Electric, to their credit, kept the ad about this incredible new technology. At the end of the ad, you see this closeup of this baby in the womb–this little face–and then it dissolves into the face of the baby, subsequently, after the baby is born–the same face. It is not a different baby. It is not one baby in the womb and another baby in its mother’s arms a couple months later. It is the same baby.

But the other side, the “women’s rights” organizations, don’t want you to know that. They don’t want you to see that. They don’t want you to understand what abortion is.

The reason I have been so passionate about the issue of partial-birth abortion is because, for a long time in this country, the whole debate about abortion was about the rights of women only–only. You never saw the baby because in an abortion, you do not see the baby. In partial-birth abortion, you cannot miss the baby. It is a baby. It is moving. This baby would otherwise be born alive because of the late-term nature of when these abortions are done. We are being called extreme because we do not want to allow a procedure which allows the baby–who would otherwise be born alive, who in 99 percent of the cases is healthy, with a healthy mother–to be delivered in a breach position, and have a pair of scissors thrust into the back of the baby’s head, when they are literally inches away from being born? We are extreme if we want to stop that?

…We are going to proceed. And we are going to proceed with this debate on the motion to disagree with House amendments. And I make a request of every one of my colleagues from both sides of the aisle to vote to disagree with the House amendment. Why? Because that is the way you get to conference.

This is a procedural motion. I never, in my 9 years, recall that we ever had a debate about what is strictly a procedural motion to go to conference. But some point is trying to be made, which, frankly, escapes me, that somehow if we vote for the disagreement, somehow we are arguing that we are for the Senate version versus the House version. What we are for is a bill that will be passed by both Chambers and signed by the President, and that will be the original contents of S. 3, which I suspect will pass here and pass, hopefully, by a very large margin.

I want to go through some of the points the Senator from California made. She talks about the medical evidence, and she put a chart up of all of the things that could go wrong with a woman in the cases of not having a partial-birth abortion available. I think we just need to review the facts. Again, you are entitled to your own opinion. You are not entitled to your own facts.

Five thousand people dying from abortion prior to Roe v. Wade a year–factually incorrect, unsupportable. We have people who were involved in the movement, as I commented earlier, who said they made up the number. Yet 30 years later, they are still using the number in spite of the National Center for Health Statistics, the Federal agency at the time that was responsible for keeping track of the number of maternal deaths, deaths of mothers due to abortion, saying–actually, there were two organizations. One was the Center for Disease Control. They said 83. They just began that year keeping track. And then the National Center for Health Statistics said 70. So somewhere between 70 and 83, not 5,000.

You are not entitled to your own facts to influence the decisionmaking of the American public or Members of Congress. If you are going to make your argument, you are entitled to your opinion. I can respect your opinion. A lot of people hold that opinion in this country, and it should be represented here, but it should be represented honestly. It should be an honest debate about what the case was before Roe v. Wade, and an honest debate as to what the case is now. I would argue that neither has been put forward by the other side.

They exaggerate claims of what was going on before. They minimize what is going on now. They minimize the real effects of Roe v. Wade. You never hear them talk about the 1.3 million abortions a year that go on. I am not talking about 5,000 or 83. I am talking about 1.3 million children die from abortion in this country–a third of all pregnancies; somewhat less than a third now. Thankfully, it has come down. But for roughly a third of all children conceived in this country, their lives end before they have a chance to enjoy the freedoms this country provides.

Last night, I had a discussion of how this country on this issue is out of whack, how we have put the liberty rights of a woman above the life rights of her child. As I said last night, the last time we did that in this country was back in the early 1800s. We put the liberty rights of the slave owner above the life rights of the slave.

I refer and have referred to the Roe v. Wade decision as Dred Scott II because it is the second time in the history of this country we have taken the fundamental premise of our country–the founding document of our country, the Declaration of Independence, which said, “We hold these truths to be self-evident”–back then we actually used very lofty terms such as “truths,” absolute things that we all agreed on, the truth. They believed there was a truth and that you could actually find what that truth is.

We said: We hold these truths to be self-evident that all men are created equal–all–and that they are endowed by our Creator with certain inalienable rights. And they listed three–the three foundational rights upon which this country was founded–life, liberty, and the pursuit of happiness–not liberty, happiness, life; not happiness, life, liberty–life, liberty, happiness. Why? Because it sounded better? Life, liberty, pursuit of happiness sounds better than happiness, liberty, life? Is that why they did that? It sounded better? Jefferson was good at writing, and he just said: Boy, this sounds better. I will put life, liberty, pursuit of happiness. That sounds nice?

How many people think that is the reason they did it that way?

Of course not. He wrote it that way because that is the way you have to write it. You can’t have happiness without freedom and liberty. How can you truly be happy, how can you truly pursue what God has called you to do in this life if you are not free to do it, if someone tells you what you must do or what you must say, what you must believe. Likewise, how can you be free, how can you have liberty if you are dead or the equivalent of dead in the case of the slave? They are there for a reason, and they are in that order for a reason. Roe v. Wade scrambles them, just like Dred Scott scrambled them. It was wrong then. It is wrong now. It was legal then. Why? Because the Supreme Court said so. It is legal now. Why? Because the Supreme Court said so.

Back then a bunch of people stood up on this very floor and said no. Millions of people across America said no. We had great leaders in our country, including President Lincoln, who said no. Remember the mainstream view was, who are we to tell others how they should live their life? Who are we? I am not God. How can I tell a slaveholder they can’t do something they did in the Bible, own slaves? That has been the tradition of this country. Who am I to make those choices for other people? I trust them. I trust their judgment. I trust their morality. How dare you not trust these people that they are not treating these people kindly, that they aren’t doing the right thing for them? How uneducated of you to feel that way.

Do these arguments have a somewhat familiar ring to them? It is the same debate. It is just as wrong. For it is our job here to say what is right and what is wrong. That is what laws are. Laws are the reflection of the collective morality of our country. Roe v. Wade was a usurpation of that collective morality. It was a hijacking of the collective morality of this country by nine Justices of the Supreme Court who decided they would play God. Now we just follow along as so many did in the early 1800s. They just followed along. Why? Because it was the law. And who are we to judge these people who own these slaves? Who are we? Who are we? That is a question all of us need to ask: Who are you? How much are you standing up for what you believe is right and what, in many cases, we know is right, and how often do you just sort of turn away and say: Well, that is the law? It is an uncomfortable issue and we will just leave it alone. And so we pass language, sense-of-the-Senate language that says this law, Dred Scott II, is something that should continue in America.

I believe, as much as I believe that I am standing right here today, that this law will be overturned, not by the courage of Senators, not by the courage of Governors or judges, but by the wisdom of the American people. We are seeing it happen. The more people find out about the injustice that abortion is and the extremeness of Roe v. Wade, people are changing. That is why there is this desperate attempt to hang on, to codify Roe v. Wade or to support Roe v. Wade, to prop it back up, this wretched decision that is affecting so much of society.

We are going to have a chance in a few weeks, once we pass this resolution of disagreement, to vote on the conference report on S. 3, which is the partial-Birth Abortion Ban Act. We will have an opportunity–I hope it will not be filibustered–to vote straight up or down on whether to send this bill to the President, which he said he will sign, and send it across the street. That is where it is going to end up. Across the street from the Senate happens to be the Supreme Court of the United States. They will have another opportunity to look at this procedure based on the factual record.

Again, I challenge any Member on either side of the aisle to come forward with a reason why this procedure needs to be legal for the health of the mother. Not one piece of evidence has been entered in the record ever that this procedure was ever necessary to protect the health of the mother. No one even makes an argument that it protects the life of the mother, but there has never been a case introduced that has not been refuted 30 different ways that suggests that this procedure is necessary for health. So the health exception of Roe v. Wade, as a result, is not applicable here because there is no medical reason why this procedure needs to be legal.

In addition, we have tightened the language. The other concern in the Court was that it was vague and could have included other late-term abortion procedures. There are many in this Chamber who would like to ban all late-term abortion procedures. That is not what this bill does. It simply bans a procedure which the vast majority of the American public, anywhere from 70 percent to 80 percent, believe should be banned. By the way, if you are with 70 or 80 percent of the American public, you are hardly on the extreme. By definition this can’t be extreme if 70 to 80 percent of the American public support what you are doing.

We have tightened the language to ban a procedure, just one–this one. So there is no doubt now that the Court had before, because of the language in the Nebraska statute, that we might include other abortion techniques. We are including one technique, this one, a technique that is never used to protect the health or life of the mother. Roe v. Wade is as expansive a right as there exists today. Let me repeat that: The right to an abortion in America is more absolute than the right of free speech, than the right of freedom of assembly, than the right of freedom of the press. Under constitutional interpretation, there is no limitation on the right to abortion–none–where these others all have limits. I would argue not great limits, but they are all limited in some fashion by the Court and by statutes that have been found constitutional by this Court. Except abortion, there is no limit. There is no practical limitation on the right to an abortion.

This–candidly and unfortunately, in some respects–is not a limitation on abortion either because if it were a limitation on abortion, the Court would find it unconstitutional. But it is not.

It is a rogue procedure that candidly is unhealthy. We have mountains of evidence from experts in the maternal field of medicine who say this procedure is the least healthy option for women. Obviously, it is the most horrendous and brutal to the child.

That is our plea. It is a modest one. It is so modest that many people do not understand why we are even pursuing it on both sides of this issue.

They ask, Why are you suggesting this? It is not going to do anything. It will bar one procedure that is not used very much–a few thousand times a year. But, as the Senator from California says, every life matters. Every case is a tragedy. So we should do it if we can. We should, and we will, hopefully in a few weeks.

Source Citation: “Discussion Between Senator Rick Santorum and Senator Barbara Boxer Regarding Roe v. Wade and the Partial-Birth Abortion Ban Act of 2003, September 17, 2003.” Abortion: An Eternal Social and Moral Issue. Margo M. Harris. Information Plus® Reference Series. Gale Group, 2004.
Opposing Viewpoints Resource Center. Thomson Gale. 05 October 2005

Document Number: X3011010369

38. Unfortunately, the subcommittee’s view was to develop evidence to limit Roe v. Wade rather than to move toward its reversal.

39. Planned Parenthood Southeastern Pennsylvania v. Casey (1992) 112 S.Ct. 2791, wherein the court stated: “Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest”.

37. Mere Christianity Copyright 1952, C.S. Lewis; Renewed 1980; C.S. Lewis Pte. Ltd. Restored 1996. Harper Collins Edition 2001, Forward by Kathleen Norris.

34. In Oregon, a man who availed himself of the State’s assisted suicide law followed the law’s directions, and after consuming a large lethal dose of medications, laid down to die. Instead, he went into a three-day coma, and awoke to ask his wife: why aren’t I dead? He stated to his wife that he had seen God, and that God told him “This is not the way into Heaven”. He obtained his wife’s promise that she would communicate this message for him to as many as would hear. She remained committed to euthanasia, but in respect for her husband, she announced his message. The man died two weeks later by unassisted death.
{Citation to be entered: LA TIMES, page 1, about May, 2005}

35. LA Times, March 26, 2005, Col. 1, Page 1.

36. See footnote 32 above: LA TIMES article regarding Oregon assisted suicide law.

33. St. Thomas Aquinas, The Summa Theologica, ed. By Dino Bigongiari, in The Political Ideas of St. Thomas Aquinas, (New York: Hafner, 1965), pp. 45-46, as quoted in “Political Thinking, Political Theory, and Civil Society 2nd ed., (Longman 2002, by Steven M. DeLue) Ch. 4: “Christian Conceptions of Civic Virtue, p. 73.

26. The court appoints a “guardian ad litem”, or person as guardian of the minor child for the purpose of the litigation. Individual states determine this procedure generally. In the case of an unborn fetus, I know of no precedent whereby the fetus acquires status as a person, leading to status as a litigant, before birth. The point I am making in this paragraph is that the fetus in Roe v. Wade, even before the case came to the Court, was in a highly vulnerable position legally: without recognized person status, without representation; and without even a name or designation. An important step the individual states can take to anticipate a reversal of Roe v. Wade is to amend their own state constitutions to confer “person” status on the unborn child, and to accord that child equal protection of the State laws.

27. The question of a human life having “person” status under the Constitution had been considered only once before in the history of the Court. The “Dred Scot” decision of the Civil War era considered whether a slave was a person entitled to sue for his freedom because his master/owner had moved with him into free territory from a slave state. The Court held that Dred Scott was and remained property, and did not acquire the status of a legal person because of the accident of where the “property” might be located. It may be a “sign of the times” that the Church’s moral outrage over the Dred Scot decision of nearly 150 years ago was not repeated in response to Roe v. Wade.

28. Justice Blackmun wrote as follows:

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

[ 35 L. Ed. Page 160]

It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics.*fn56 It appears to be the predominant, though not the unanimous, attitude of the Jewish faith.*fn57 It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family.*fn58 As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes “viable,” that is, potentially able to live outside the mother’s womb, albeit with artificial aid.*fn59 Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.*fn60 The Aristotelian theory of “mediate animation,” that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this “ensoulment” theory from those in the Church who would recognize the existence of life from

[ 35 L. Ed. Page 161]

the moment of conception.*fn61 The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a “process” over time, rather than an event, and by new medical techniques such as menstrual extraction, the “morning-after” pill, implantation of embryos, artificial insemination, and even artificial wombs.*fn62

[95] 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. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive.*fn63 That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few

[ 35 L. Ed. Page 162]

courts have squarely so held.*fn64 In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries.*fn65 Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem.*fn66 Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.

[96] X

[97] In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches

[ 35 L. Ed. Page 163]
29. The correct and better judicial principle to follow would have been to defer to the State of Texas if indeed there was such an unsettled question on an issue as fundamental as the commencement of human life and “person” status. Blackmun’s fallacy is: he could not confer the right to abort unless concluding at the same time that the destroyed fetus was not then, and could not later be determined to be, a human life having “person” status. Effectively, Blackmun determined the very issue he claimed lacked sufficient evidence or reason to determine.

30. Griswold v. Connecticut (CITATION)

31. As stated by the majority in Roe v. Wade:

The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts,197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).

[86] 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. 32. The world itself, seen from the perspective of distant space, appears much like a womb precariously supporting all of biological life.

24. The decision includes some restriction on abortion in late term pregnancies. The restriction has been interpreted by later abortion decisions by the Court in a way that guts the restriction of any force or meaning. A states restriction on abortion must allow an exception for the “health” of the mother. “Health” concerns are to be decided by her physician exclusively, and include her emotional health. Therefore, an abortionist physician can justify any abortion, and generally does so. The interest is likely not the health interest of the mother, but the financial interest of the abortion clinic.

25. The Supreme Court has avoided the question of “justified homicide” by ignoring the question of the humanity of the fetus and by implicitly treating the unborn fetus as a legal non-person.

22. The majority opinion in Stenberg v. Carhart seized on this logical and ethical inconsistency in the Nebraska law. Justice Stevens, in joining the majority overturning the partial birth abortion law, chided the dissenters by stating (I think truthfully): “For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational.”

23. We as a citizenry are in denial or ignorance of own passive complicity in D&E abortions. D&X (“partial birth” abortion” seems to have shocked much of the citizenry because the procedure brings the victim into visibility as the child is “delivered” through the birth canal except for the skull. This same child if dismembered within the uterus can be killed without restriction. The mere movement of this person from the womb to partial visibility outside the womb is hardly a rational basis to confer or withhold the right to life.

21. Sometimes D&X is called “Intact Dilation and Evacuation, or “Intact D&E”

10. On its face, individual rights are a cornerstone of American law and political philosophy. The more pressing question is: “individual rights” according to what standards? Who decides the balance between complete autonomy and complete submission? Christians seek that standard by looking to the character and preferences of God in scripture and His creation. Modern American Culture has shifted to “radical individualism”, that is, the practice of each person being a god unto himself, deciding in isolation, his own law of behavior. In common discussions, this attitude is often expressed as “What’s right for me may not be right for you”. The implication of this attitude is that there is no objective standard of right and wrong, and therefore you have no right to tell me my choices are wrong.

11. The standard for a “mental health” exception may be nothing more than the inconvenience of interrupting one’s education and career, with its attendant frustration and loss of income. These considerations are minimal in significance compared to the intrinsic value of human life that is destroyed to serve these less fundamental interests.

12. “Bioethics Class Visits Neonatal Facility” Elyse Graham, Princetonian Staff Writer, http://www.dailyprincetonian.com/archives/2004/. See also, “Fetuses and Newborn Infants at the Threshold of Viability—A Framework for Practice” [BAPM Memorandum], http://www.bapm.org/documents/publications/threshold.pdf . Neonatal life support procedures can now sustain prematurely born fetal life from as early as 22 weeks, prompting the World Health Organization as early as 1993 to define the perinatal period as commencing at 22 weeks completed gestation (154 days; birthweight approx. 500g.). This information is relevant to the partial birth abortion procedure because “viability” is the marker legally for when the States may constitutionally intervene to prevent abortion. As stated in Planned Parenthood of Pennsylvania v. Casey (1992) 1992.SCT.43970 ; 112 S. Ct. 2791, 120 L. Ed. 2d 674, 60 U.S.L.W. 4795: “The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe ’s factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.” (Majority Opinion by Justice O’Connor). [emphasis added].

13. [WebMD Health at www.webmd.com—“How can I make informed decisions about my extremely premature infant?” and “Gestational age”]. An infant born before 37 completed weeks’ gestation is considered premature. Births that occur between 22 and 26 completed weeks of pregnancy are termed extremely premature. An infant’s chances of survival significantly increase with each additional week of gestation. Neonatal life support procedures can now sustain prematurely born fetal life from as early as 22 weeks.

14. The requirement that exceptions to anti-abortion statutes be made for both the life and health of the mother really amount to only one exception: health. A mother’s health clearly includes consideration of the protection of her life. Protection of life as a medical standard is clear: the mother’s life, in the absence of the abortion, would be at significant risk. A Physician can assess that risk by a fairly obvious benchmark: the patient’s impending death. On the other hand, the requirement that the mother’s “health” be considered is much less clear. Health includes emotional and physical states that may be unpleasant and transitory, such as sadness or depression related to changes required in life style because of the pregnancy. These minimal and often subjective criteria, evaluated by a physician, without checks or balances, give a virtual carte blanche to the procedure even after “viability” at 24 weeks.

15. Of course, any physician has a duty to conform to minimum medical standards to avoid charges of malpractice, but that standard is not relevant to this legal analysis. “Standards of Practice” do not address the necessary justification for residing with a medical professional nearly complete power to decide questions concerning the value of human life. Even at the Court’s “post-viability” demarcation of the States right to restrict abortion, the Court appears ready to abdicate responsibility for ethical considerations to persons not equipped, trained, or elected to make these profound decisions.

16. The Nebraska statute defined “partial birth abortion” as a procedure in which the doctor “partially delivers vaginally a living unborn child before killing the . . . child,” The Statue also defined the “killing of the child” to mean “intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the [abortionist] knows will kill the . . . child and does kill the . . . child.” The law provided for the automatic revocation of the license of a physician performing this “procedure” and treated the abortion as a felony by the doctor.

17. The trial in Stenberg v. Carhart turned into a battle of medical experts debating the relative safety of abortion procedures. The strange twist to this exercise is that the cruel and inhuman actions of the abortionist were not the focus of the analysis. All the procedures at the point of near viability involve the ripping apart of the human body, and inflicting a barbaric and unquestionably painful death. The bizarre nature of the trial, and the appeals, is reflected by the state’s implicit argument that the locus of where the unborn child is found at the time of the killing determines whether the procedure can be restricted. Even the dissenting justices argued that because the birth is partial, and we can see in open view the act of dismemberment, the state had a legitimate interest in restricting these kinds of awful acts, but had no similar interest in restricting more commonly practiced abortions. This approach of “see no evil” is the absurd result of a Court following the logical application of its reasoning in Roe v. Wade 27 years earlier.

18. The four dissenting justices in Stenberg v. Carthart strongly opposed this conclusion, and reviewed the ample body of medical opinion concluding there was no demonstrable safety advantage to partial birth abortions.

19. Does law have anything to do with morality? Of course it does, and every law is the imposition of morality by one group upon the society at large. However, many lawyers and judges declare that morality has nothing to do with the law. Every lawyer knows that some immoral acts may not be illegal while other laws may even advance an unethical outcome. Lawyers are not trained in to apply morality, but to apply and practice law. Morality, many lawyers would argue, just muddies the water, and is irrelevant. For example, in a trial court, procedures are set and followed which have an almost mechanical quality to them, with no regard to the ethical implications of the results such procedures produce. Questions of “right and wrong” and “public policy” are more appropriately argued by legislatures creating law. The role of judges generally is to interpret and apply the law which legislators enact. Unfortunately, this line between the makers of law and the interpreters of law is crossed in cases like Roe v. Wade where the private morality and politics of the justices became an unpopular pronouncement of public policy embodied as a constitutional principle, a principle created but not found within the Constitution.

20. Overturning Roe v Wade will not end abortion. Rather, the individual states would be free under our constitutional system to enact restrictions, including criminal statutes, intended to limit or prohibit abortion. A substantial number of states presumably would not significantly increase or change the laws they enacted while Roe v. Wade was law. Still, the question of public policy and morality in the law would be addressed appropriately where it should be—not in the courts, but in the individual state legislatures. In this regard, the original intent of the constitution, as expressed in the 9th amendment, was to reserve all powers to the states not specifically enumerated as federal powers in the Constitution.

7. Taken from www.priestforlife.org and its homepage link entitled: America Will Not Reject Abortion Until America Sees Abortion

8. In the immediate aftermath of Roe v. Wade, a number of Supreme Court decisions moved toward a position that any interference in the right to abort was undue interference. After a number of conservative judicial appointments to the Court, pro-life advocates hoped Roe v. Wade would be overturned with the case of Casey v. Planned Parenthood of Pennsylvania ( ) 505 U.S., at 871. Instead, the Court continued to find a constitutional right of Abortion. The Court did however state that the States had a “substantial interest” in potential human life throughout pregnancy, and that federal courts were not to require the States to satisfy the highest level of proof to justify restrictions on abortion. (This highest level of proof is that of proving a “compelling state interest” to satisfy a “strict scrutiny” by the Court.)

9. To Be Inserted

1.WorldNetDaily, posted January 17, 2005 www.worldnetdaily.com/news/article.asp?ARTICLE_ID=42422

2. On February 22, 2005 the Supreme Court refused to hear Norma McCorvey’s appeal. The lower court (5th Circuit Court of Appeals) stated that it was too late to review a 30 year old decision, an outcome McCorvey surely anticipated. Yet, one judge on the 5th Circuit, although concurring with the opinion, stated that “one may fervently hope” that the Supreme Court would revisit Roe and its 1992 abortion ruling in Planned Parenthhod v. Casey (2004) 505 U.S. 833. Los Angeles Daily Journal, Feb. 23, 2005, Vol. 118, No. 36, Page 1.

3. Los Angeles Daily Journal, Feb. 23, 2005, Vol. 118, No. 36, Page 1.

4. Matthew 13:12 - For to him who has will more be given, and he will have abundance; but from him who has not, even what he has will be taken away.

5. Citation to be provided

6. The trial court evidence was that other, less gruesome, and just as safe or safer abortion procedures existed. Yet the court accorded almost complete discretion of the physician and patient to decide to use the procedure.

The nomination of Harriet Miers to the U.S. Supreme Court on October 3, 2005 brings her life into sharp focus and national scrutiny. The reports by the L.A. Times repeatedly describe her as a “workaholic”.

If Ms. Miers were male, her “addiction to work” would probably not raise many concerns. To the contrary, males are usually praised and honored for workaholism. The only people complaining are their children, who of course come to feel abandonned and unloved.

As a female, however, Ms. Miers is probably going to be viewed ambivalently by some people of both genders. She has never married, and is without children. Her life has most likely been her work. She has consistently risen to the top in her profession by putting in long and steady hours, day after day, over her 60 years of life.

The result of her native skills, her character, her intelligence, and of course “being in the right place at the right time” is her current nomination. By this measure, she is an outstanding success. Her life has impact and influence.

Both genders should reflect on the meaning of success outside of one’s career focus. Women particularly are burdened with this question because they are the traditional keepers of the family, while also entering into the “male dominated” world of career and work. The result: women are choosing to work to exhaustion, mental, physical and spiritual.

The further truth is that the exhaustion and emotional guilt cut across gender lines. Men who love their women seek to carry the burden also, and they too love and nurture their children. They cook, they clean, and they change diapers, and they transport kids to soccer games. They are not just “enlightened” men. They are men who love their families, understand the burdens of their wives, and seek to share that burden.

So the question is a “person” question in our current culture, not just a “gender” question: What is a successful career in the context of successful life? Every choice one makes in answering this question limits all other potential choices. If one chooses to marry, to have children, to buy a house, to incur debts of money and of the heart, then other choices are limited.

The focus of this blog is “LIFE”. When a man and a woman bring life into the world, all other choices that follow are determined by that primary choice to create life. Harriet Miers chose not to marry and chose not to have children so that she could pursue her professional goals. I respect those choices. I hope those choices were not the result of “workaholism” as the L.A. Times flippantly reports her work ethic. If those choices were based in addiction to work, then they were not balanced or healthy choices, and they carry a high spiritual and emotional cost.

But when a man and a woman bring life into the world, they lose the choices they theoretically had before the conception of that child. Their choice to conceive a child was actually a “choice” to care for the life of the child. They became biological parents, and with that choice, they are to sacrifice themselves daily for their child until he or she matures to independence.

That is the rub. Many in our culture have sought to evade the responsibility of their choice to conceive life by the convenience and legal opportunity to abort their children. Even in the case where the pregnancy is an accident or unintended, the reality is that a new human life is conceived. Even if a person has not chosen to be in the circumstance of saving a human life, the moral obligation to preserve life is still present. One cannot, for example, stand by and watch a person drown without assisting him simply because it did not “choose” to come upon the scene.

The family today is torn apart in many cases by the demands of two parents working long hours to meet obligations they have chosen to incur in order to live a culturally expected lifestyle of “prosperity”. The American dream can easily become the American nightmare as two parents lose the contact of love and freedom they once thought was theirs. Children suffer. The community suffers.

A successful life is one in which we have the energy, joy, and opportunity to love and care for those God has given us. We sometimes can only have more by having less.

Introduction

: When people ask me what was the happiest time of my life, I answer unhesitatingly: my daughter’s birth. At 18, she one unfolding wonder after another. Although I was too stunned to realize it at the time, as I stood in that hospital delivery room watching my daughter being born, I was in the presence of the sacred, and I witnessed it as a special participant—I was her earthly dad, and that day I was given a sacred commission to care for her. Even as I write this, I feel an upsurge of emotion that brings me almost to the point of tears.

Another set of memories can also bring me to tears. It is the memory of participating in the abortions of 3 children nearly 23 years ago. I was a reckless young man who had little idea of the sacred nature of sexuality and the responsibility God places upon us in its practice. Three women chose to abort the human life I created with them, and I implicitly or actively encouraged them in that decision to kill. At the time, I was so self-absorbed, and so unconnected with God’s word or God’s spirit, that I was numb to the meaning and consequences of my choices. Yet, as I became spiritually alive years later, and God opened both my eyes and my heart, the deep sadness of my actions became real. I sought and received God’s forgiveness, but I will always grieve at the death I helped to bring to those little persons, and the emotional and spiritual harm I brought to the women I supposedly loved.

My experience basically states the case that might be filed in a spiritual court of law: the case of a Culture of Life v. a Culture of Death. This moral, spiritual, medical, and legal confrontation of values is of course also the basis of a literal ongoing series of court battles. I have been a practicing attorney at law for almost 28 years. Roe v. Wade was decided the year before I started law school. With Roe, you might say the Culture of Death had judgment entered in its favor. That decision by nine lawyers sitting as supreme judges by political appointment cannot however be considered the Final Judgment. Only God the Father has that supreme authority. As a Christian, and as a lawyer, I have come to accept that some judgments so offend God that they must at all costs be opposed as morally obnoxious and unjustifiable.

This article will present a short background of three major abortion cases so the reader can identify the underlying values and human thinking that led to constitutional sanctioning of abortion. The reader will see a progression of thought that led to the horrific decision to permit partial birth abortion in 2000. However, I will also outline the basic premises of the dissenting opinions in these three decisions, opinions that give hope that an intellectual foundation exists to support the eventual overturning of the federal constitutional protections accorded abortionists. Finally, I will suggest some immediate small steps people can take together that will have a loving and redemptive impact on the Culture of Death.

Call to Action.

The debate on Abortion often includes a statement by the two sides that reasonable and good people can differ sincerely on the practice of abortion. This is a seemingly gracious and polite statement contributing to a civil debate, but it is a false statement. A good person is one knows what is good and attempts sincerely to do it. To be “good” is to have a virtue, a quality of character that contributes to living rightly in the world as it is. “Goodness” is the act of conforming one’s behavior to transcendent principles that govern the world of human relations. If a person does not know these principles, and therefore does not follow them, he may not be consciously evil, but he cannot be considered “good”. He may even be “innocent” in his ignorance, but he is not virtuous.

This false idea that good people can differ on the question of abortion leads to compromises of matters that cannot be ethically compromised. Good people cannot differ on the wholesale continuous destruction of millions of defenseless human lives as if the question was one of setting grooming standards or freeway speeds. It is time to be resolute on the issue. We must step forward in one voice to say that abortion is a moral and spiritual abomination that will steadily erode our original “goodness” as a nation.

We must take steps to advance on two political fronts simultaneously: we must seek state constitutional protections of pre-natal human life as well as state legislation that will provide the maximum protection of pre-natal human life currently permitted by federal decisions. Secondly, we must seek to reverse current federal constitutional decisions permitting virtually unchecked abortion. This second approach includes two tactics: The first is the appointment of U.S. Supreme Court justices by President Bush who will overturn Roe v. Wade. The second concurrent tactic is to press for a Constitutional amendment explicitly legally defining a pre-natal human life as a “person” from the time of conception, with all the protections of life accorded equally to other persons under the Constitution.

Before these political changes take place, we can do much to protect pre-natal life. We can educate ourselves on the science of when human life begins, and we can become more informed on how Christian ethicists define the core concept of “person” even as a human being goes through the different stages of biological life. We can then be prepared to state the case to our family and acquaintances for when human life begins. We can develop a case that a “person” is a human life having an individual identity with protections and rights, at all its stages of biological existence.

We must also at the same time in the current hostile political environment do all we can to discourage women from choosing to kill their unborn children. We must approach these women compassionately, and with clear alternatives to abortion. We must give these women “a way out” other than abortion if they are convinced they are unable to act as parents. Therefore, we should financially support private pregnancy centers that espouse a pro-life program. These centers can provide financial, medical, emotional, and psychological support and education to mothers who cannot or will not keep their children after birth.

Clearly, we need to devote private and government resources to adoption, and to seek reform of adoption laws that delay adoption unnecessarily, and discourage people from adopting. We must let people see that adoption is a socially rewarded and supported act of love by public and private media campaigns that communicate and praise the adoption alternative.

Finally, we must educate the public about the inherent value of human life, and therefore the critical importance of abstaining from sexual activity that produces human life outside a responsible family environment. Popular media represents sexuality as a thoughtless self-indulgence having no long-term consequences. We must celebrate God’s gift of sexuality, while also communicating the message that it carries profound responsibilities for the creation and care of human life.

Currently, the Judiciary Committee is very active in preparing for the inevitable public hearings that will follow the resignations of Justice Sandra Day O’Connor and of Chief Justice Rehnquist. There may be other vacancies during the next three years. The time is critical for followers of Christ to do all they can to influence the outcome of those hearings and the eventual vote of the Senate confirming the President’s appointments. The chairman of the Senate Judiciary subcommittee on the Constitution, Sam Brownback of Kansas, took testimony during June, 2005, from legal experts to address these fundamental questions of “the beginning of human life”, and the idea of “person” within the meaning of the Constitution. The subcommittee is also examining afresh the intellectual and legal underpinnings of Roe v. Wade, a decision that created a right to abortion within the 14th Amendment. Individual Christians should promptly communicate their position for protection of pre-natal life by contacting the Chairman. (EN 38)

On July 19, 2005 the President nominated John Roberts as Justice to the Supreme Court. Judge Roberts was sworn into the vacancy of Justice Rehnquist as the new Chief Justice on September 29, 2005. On October 3, 2005 president Bush nominated Harriet Miers to fill the vacancy of Justice Sandra Day O’Connor. Both of these justices are Christian, and Ms. Miers is specifically evangelical. She actively practices her faith and regularly attends services in the Dallas area. In matters of faith she is closely aligned with her President. She is likely to take principled position when addressing matters of state restrictions of abortion. These appointments are pivotal to the ultimate decision of whether the Court will uphold the “judicial activism” that created a constitutional privacy right permitting women to abort children virtually without restriction. The Court needs to know that there is a persistent and dedicated citizenry opposing abortion. The importance of this public stance is reflected by the Court’s pronouncement in Planned Parenthood Southeastern Pennsylvania v. Casey (EN 39) The Casey majority reflected on the divisions of moral position over the decades since Roe v. Wade. In doing so, it admitted that it did not function in a vacuum, but understood that its credibility and stature depended on public opinion. Still, the Court took an unprincipled approach to the issue of the “right to life” of the unborn child in opposition to the “right to liberty” of the pregnant mother seeking abortion. The Court stated in strangely political terms that so much had already been invested in upholding Roe v. Wade that reversing the decision would undermine public respect for precedent and give the impression that the Court was changing its position in response to public pressure. The decision is reminiscent of the practice of “throwing good money after bad”. The rationale in both cases is to ignore the continuing cost of the original erroneous decision because so much has already been invested in the original bad choice. Casey, like Roe v. Wade, will fall because it violates the limits of Government set forth in the Constitution, and because it condones the taking of human life without due process of law.

Therefore, the basic failure of the legal and moral legitimacy of Roe v. Wade and Planned Parenthood v. Casey must be continuously brought to the public domain, and made the subject of vigorous debate and protest. This approach has influenced the election of our current President, a Republican majority in the Senate, and produced appointments of conservative jurists who will reverse or erode the Roe v. Wade decision. Now, as the balance of opinion shifts on the Court, people of conscience must even more persevering in condemning the immorality of Roe v. Wade and all decisions following it.

God’s Law and the Constitution.

The Constitution is a short document best defined by what it does not do. It does not attempt to state God’s law. It is not a Bible or an inspired scripture. It is not a comprehensive statement of the Law, but leaves to the States and “the People” the enactment of other laws. It is not a statement of the general power of government over the people, but a statement of limitations of power. It is not a philosophical document but a practical outline for how a federal government is to work.

There is no right to abortion stated in the Constitution. There is no right to privacy or autonomy stated in the Constitution. Specifically granted rights include such matters as the right to vote, the right to a jury trial, the right to equal protection of the laws, the right to due process, and the right to be free from search except for probable cause. Nowhere in the Constitution is there a clause stating that judges may create rights consistent with the moral or philosophical principles they may hold. Indeed, Madison in the Federalist Papers makes clear that such power without the checks and balances of a limited Constitution would lead to tyranny.

There Is No Absolute Right to Privacy.

C.S. Lewis, in his book Mere Christianity , (EN 37) states that ethical conduct depends on three conditions being satisfied: that my inner state be ordered around right conduct, that my relationships with others be in harmony with principles of right conduct, and finally, that my culture have a unified sense of purpose supported by right conduct. When an individual, a society, or a culture deviate from these “right principles” created in God’s design for human life, there will be discord and misery. Lewis uses the illustration of ships in a fleet. If an individual ship developed internal guidance problems, it would be lost. On the other hand, if each ship in the fleet had no sense of being in formation and followed its own route, there would be multiple collisions and chaos. Finally, even if the ships were in formation, but the direction of the fleet was toward a wrong destination, every ship would eventually suffer. Regarding abortion, we must ask: what are the long-term consequences of abortion on our culture, and each individual human life within it?

Personhood and Relationship.

Personhood to God is inherently bound in the idea of relationship. The triune God, while One God, expresses Himself as Father, Son, and Holy Spirit—three unique persons, not just personality aspects of one person. It is in the nature of God to be a Person, that is, unique, identifiable, expressive, creative, and separate from other “persons”. In this way, God communicates, reveals, shares, and loves. In addition, in this way, God experiences the joy of closeness and the pain of separation inherently a part of being “not the same”. Only in this way is the “other” experienced. Only if there are separate identities having separate capacities and powers can there be relationship. Foremost among these separate powers is the ability to choose the degree and duration of closeness to the “other”.

One thing is very clear about God’s value of relationship: it does not require equality. Other than the triune persons of God communing with one another, God has no equal with whom to communicate. Jesus’ life is God’s statement that he desires relationship with us anyway. While we cannot understand God’s grace in lowering Himself to connect at our level with us, we can still accept such love and experience it. We can be in relationship with God our creator, but only because he created us as persons in His image, having capacities like Him for relationship. If God values us in our limited capacities, then by His example, we are to value greatly other human life that may not share in full human development.

Another aspect of God’s design for relationship is that we are being “grown up” into being more and more like Jesus. This life is our opportunity to enter into the family of God, and to grow from spiritual infancy to spiritual maturity through our relationship with God and one another. That is, “personhood” is not a static state. We are “persons” with a unique capacity for growth and choice. Our most important decisions concern our relationships. If we defy God’s natural design, we inevitably suffer. If we follow the laws of His created universe, we inevitably prosper. That is, our success as persons depends on our right relationship with God and His creation.

God of course is not interested in relationship with automatons. A “person” is someone having free choice, and the power to exercise it, regardless of consequences. A “person” then is someone entitled to live freely, and to make mistakes. Why? Without such freedom, deep relationship could not take place. God created us therefore with freedom of choice between good and evil.

If “freedom of choice” is inseparable from “personhood”, “love” is inseparable from “freedom of choice”. “Love” says yes to life, encourages life, nurtures life, and sacrifices for the sake of life. If our most important decisions concern our relationships, then the single most important characteristic of these choices is whether we choose the path of love or the path of self-centeredness. God by His Nature, chooses only the path of love. His love is so great that He sacrificed His very Self in the divine person of Jesus in order to restore relationship with us as humans. Who we are and who we are to be as “persons” is revealed by how much God loved us.

Finally, we know that God did not create us for temporary relationship, but for eternal life with Him in Heaven. God created each of us so uniquely, that we are for Him a continuing unfolding of discovery and delight as we continue to make choices even in Heaven.

In summary, God reveals his Personhood by His unfailing “Yes” to life. Our physical life in the created world reflects His “Yes”. In turn, this life is itself a precursor to a more profound primary “Yes” to eternal life. God so delights in life and growth that He uses physical death as a transition to still other higher levels of life. God does not choose “No”, but men and women do. If there is a final death, it is because we choose it, not God. For God, life is good because it permits relationship: Creator with created.

What does God’s idea of personhood say to us about whether the unborn fetus is a “person”? First, we know that each created fetus is a unique human being, being statistically impossible of exact replication. Our later experiences in life only add to the unique formation of our personalities.

We know that each unborn “person” has a destiny of DNA and God given purpose. This uniqueness of design and purpose will manifest successfully or not in how the person chooses to live his life.

We also know that the relationship God intends for us does not depend on our equality with God, but is focused on how we become more like our Creator as we develop in relationship.

We adults are very much like spiritual fetuses in our capacity for relationship with God. God views us not only worthy of life, but even attractive for relationship. Like fetuses not yet born into the “citizenship” of the material world, we are not yet born into the citizenship of Heaven. Instead, we live like unborn children in total dependence on God, unable even to speak at any level comparable to His intelligence or able to do anything comparable to His ability. God loves, protects, and nurtures us into spiritual maturity. By his love and protection, even at our earliest stages of growth, we become able to act with increasing autonomy and power. God “births” us into progressive phases of life, both physical and spiritual.

The love we show the unborn is similar to the love God shows us even as we gestate spiritually, awaiting our “birth” into Heaven. God enters into relationship with us even though we are still so small in development. We have His character structured spiritually into our eternal lives, and He preserves and loves us with the hope that we will live out our destiny to full development. Why? Because He delights in seeing us grow more into the son or daughter He created. Our “personhood” in God is not dependent on whether we are in the womb or outside it. It is not dependent on whether we consist of a few cells or millions. Our personhood is not dependent what we can do, or our ability to think. Our personhood is based on having been created by God for a unique purpose built into our very being at the instant of conception. Only a life lived reveals the fulfillment of that purpose.

God’s model of love for us as spiritual “fetuses” is instructive for how we are to relate to the biological fetuses we create in the material world. We are not to view the fetus as a non-person because it may initially consist of only a cluster of cells. We are not to dehumanize or devalue the fetus because it is confined to a womb for a period of 9 months as it undergoes an astounding period of growth and differentiation. We are not to destroy the fetus because it is utterly without power and unable to assert itself against our power to kill it. We are not to see the life of the fetus as static and without purpose, but as a dynamic life moving through progressive phases of greater development and power. Most importantly, we are not to be blind to the ultimate purpose of this biological process: the human body being formed permits the development of a soul inseparable from the experience of the body. Stated differently, even as God loves us in our smallness and lack of development, we are to love the unborn. What God declares to be of utmost importance, we are not to treat as disposable trash. We are to demonstrate the same grace to the unborn that God demonstrates to us, for in truth, we are not far removed from the unborn fetuses we daily destroy.

Our culture is driven by the question: “What can you do for me?” Yet Jesus crafted his life around the question: “What can I do for you?” This difference is the difference between selfishness and love, and it characterizes the two camps in the abortion debate. The small, the infirm, the dying, the bedridden, the unconscious, the demented, the deformed, the mentally impaired, the voiceless, all have this in common: they need and require more than they can produce and give. Therefore, in a society driven by the “What can you do for me?” question, these persons lose value, and maybe even lose the right of life. Whatever legal or ethical justifications are created to justify destruction of these persons, ultimately the justification is that they lose in the “What can you do for me?” equation. Often, the most expedient justification is to deny that the human being killed or neglected is a “person”. Those lives being taken are biological “things” and not one of “us”.

Jesus’ embrace of suffering despite His obvious love of life teaches us the most important of life lessons: The avoidance of suffering is not the way to heaven. (EN 34) If our service of the voiceless and the helpless is our suffering, then we are to embrace it. We can embrace this suffering because God strengthens us to bear it, and because in God’s classroom of earthly life, we learn the lessons of suffering we will somehow use in the eternal life to come. Among the most important lesson in such situations is the ability to love more deeply. Today, many women choose abortion as a matter of convenience or secondary birth control. They avoid the “suffering” of delayed educations or careers, the responsibilities of parenthood, or the frustrations of placing a child for adoption. They miss the opportunity to grow in love, and they increase the misery of living out of selfishness.

What of the person who has almost nothing to offer to us in relationship because of mental or physical limitations? Edwarda O’Bara was 16 when she slipped into a diabetic coma, and suffered severe brain damage. Her mother brought her home from the hospital on May 31, 1970. Edwarda cannot talk, walk, or form ideas. She cannot move her body even to turn in bed. She requires 24 hour attention. Edwarda is now 51 years old, and her mother has cared for her in her home, virtually without other assistance, for all those years. For the first 25 years Edwarda’s mother left home only twice: for her husband’s funeral, and for another daughter’s wedding. She checks her daughter’s blood sugar day and night, every 4 hours. She shaves her legs regularly. She reads the newspaper to her, although it appears Edwarda understands nothing. She feeds her daughter by tubes. She suctions her throat, and turns her regularly in her bed. (EN 35)

Edwarda’s mother loves Edwarda because she sees in Edwarda more than the sum of her limitations and the total of her requirements for care. She sees Edwarda as dear, worthy and valuable because she is “Edwarda”. She has a name, a purpose, and a place. Her relationship with Edwarda is not defined by what Edwarda can do, but by who Edwarda is. I think that if you reduced all the reasons to the most simple statement, Edwarda’s mother would answer the question “Why do you do it?” by stating “because she is my child”. Edwarda’s value is in her relationship to her mother as her child, her daughter. Her value is not in what she can do, but in whose she is. So it is with us. We are God’s. He surely does not look to us for what we can do for him. We are utterly helpless to assist in running the Universe. He certainly does not look to us for intellectual stimulation or for creative exchange. We are utterly blind. He certainly does not seek us out for stimulating repartee or for some new insight. We are like babies babbling nonsense. If God were to explain to us why he loves and sustains us, I think His answer would be that of Edwarda’s mother: “because you are my child”.

What is the value or purpose of Edwarda’s tragedy, or the sacrifice of Edwarda’s mother for the last 35 years? There are no simple answers to questions like these, but one thing I see in this mother’s sacrifice is a reflection of God’s Spirit in her. In her, God’s character as Pure Love is revealed among us. I also see God’s imprint of value and worth upon Edwarda. She bears that imprint from conception and birth. Her mother sees that imprint by looking deeply with the eyes of love. As a result, Edwarda is part of a relationship shining in a dark and broken world. Killing Edwarda by assisted suicide, or by forced dehydration and starvation, is not the way into heaven. (EN 36)

God’s Idea of Personhood.

Who you are as a “person” is infinitely important to God. God shaped you from creation in a unique matching of genes contributed by two other totally unique persons. God’s love of variety is seen in no more complex and interesting way than in the creation and formation of human personality.

But the real value of your “personhood” is not in who you are now, but in who you will become. Further, you must stop seeing the value of your “personhood” in only temporal terms based on your present existence as an earth-bound personality. The “you” who exists now is not the “you” who will exist later. Yet, there is a direct link between the “you” of now and the “you” of then. It is that link or bridge that gives both pre-natal and post-natal life its sacred quality.

The bridge is this: our present limited personality is the raw, unrefined material God uses to implant his God-Life in us. The feature most distinguishing Christianity from other world or religious views is this: we are not who we appear to be in these human bodies. We are spiritual children of an unseen God. Our bodies and our earthly personalities, as reflected in these physical bodies, are both transitory and transitional. Most intriguing about Christianity is that these transitional bodies carry the God-Spirit in community, and each personality is like a living cell in a living body, and that together, this wonderful orchestration of personalities form the Person of God again incarnate on earth. These are profound and difficult concepts but they are the cornerstones of our faith.

The Christian focus then not who we are, but who we are becoming. Further, the Christian focus is not on becoming something in this world, just to please the standards of this world, and then to die, but to become someone of eternal significance in the eternal plan of God. By God’s design, and because we are created in His image, our personalities can be healthy only by being in “right relationship” with God and one another. Our “person” status is inextricably dependent on our relationship with God and our relationships with other people. These relationships provide the life opportunities and lessons we need to move to the next level of our “personality” growth: eternal life with God.

So, we think we are “persons” for this world, and its purposes, but as we “step across the line” to receive a radically new life through Faith in the Promises and Person of Jesus, we discover something different happening in us: we are not just improving our old personalities, we are developing a radically new and different personality. This different personality is one meant to operate at a level completely beyond the concerns and rewards of this world. We sense we are moving toward a completely different world. This new world requires radically different personalities. These new personalities will be equipped to love, work, and live at levels unimaginable to our present experience.

Christians do not see the body as separate from the spiritual, or even in conflict with the spiritual. The body is not the source of sin that impedes a sinless spirit. Both body and spirit are stricken. But it is also true that both our body and our soul continue to bear the original imprint of the living God who created us. The body has a critical and irreducible part in our redemption and restoration as spiritual beings. Specifically, our new life in Christ takes place within and through our bodies. Even our sanctification occurs through our bodies as we surrender our physical passions to the control of the Holy Spirit. Our bodies are not just metaphorically the temples of the Holy Spirit. They are literally the sacred vehicles of our Christ identity as it grows in fullness and perfection on this earth.

God has deemed (and redeemed) these broken and dying bodies and these distorted and limited personalities to be worthy as the raw material from which our God natures are formed. God takes the old, and from it, makes something truly new, as only He can do. For this reason, the human body, the human mind, the human heart, and the human spirit are sacred. When we dishonor our bodies by sin, whether by overwork, overeating, starvation diets, fornication, addictions, violence and abortion, we offend the very image of our Creator, and defile the dwelling place of the Holy Spirit. For this reason, abortion is an abomination before God, and grieves Him deeply.

Pre-natal life then carries the God imprint. It follows that because God is inherently in relationship by His triune and creative nature, pre-natal life also exists in relationship. Initially, pre-natal life is foremost in relationship to its mother, and the relationship is primarily biological. With each month of pregnancy, the relationship assumes new areas of awareness and connection, particularly on the part of the mother whose mind and emotions connect to the developing human life within her.

We often think only of the mother supporting the development of the fetus, and fail to see that the fetus also supports the development of the mother. From the beginning, changes in personality occur all around the new biological human life that has come into the world. As the fetus grows, is born, and matures, the child’s relationships shape not only the child, but also the “persons” in relationship with the child. This “shaping” is part of God’s larger plan for the use of earth-based personality to create an entirely new God-centered personality. For this reason, abortion is grievously wrong because it destroys not only the fetal human life, but also all the other personal relationships that would have been opportunities for transformation had he or she lived.

Immutable Principles of Law Governing the Idea of Personhood.

Think of your behavior as a person to be like the running of your automobile. You can of course do anything you want as an adult person, even violating the law or snubbing the social norms of decency. Likewise, you can pour sand in your car’s gas tank when it is time to refuel. You are free to do so. You may even be of the illusion, sincerely held, that doing so will cause to the car to run better. The fact remains your ideas of fuel economy will not change the mechanics of the car. It simply will not run. The same is true of a human life and behavior. Our brains, bodies, emotions and souls were also created to operate in this world by design. That design is unique among all living creatures in the world. In the Judeo-Christian heritage, that design is called the “Image of God”.

In this regard, two things are clear: we did not design ourselves, and so have no control over the principles by which our design operates, and secondly, violating the principles has eventual serious consequences.

Dicken’s wrote a book “A Tale of Two Cities”. But before Dickens, in about 400 A.D., a Christian writer, St. Augustine, wrote a thesis of that same title. Augustine’s two cities were the “City of God” or the “Heavenly City” and the “City of Man” or the “Earthly City”. In the Heavenly City, the citizens place God at the Center, and glorify God. In the Earthly City, the citizens place man at the center, and glorify the “self”.

In the early days of the Church, the distinguishing character of the Christian community is that they conducted themselves as if answering to the government of Heaven. One of the earliest writings describing the Christian community was a letter dated about 130 A.D. to one Diognetus: “They dwell in their own countries but simply as sojourners. . .They pass their days on earth, but are citizens of heaven . . .”

Sin of course separates the two cities. Yet followers of Christ move from sin and into the Heavenly City. They see and act through the eyes of their new citizenship. Eight hundred years after Augustine, another Christian writer, Thomas Aquinas, sought to bring the two cities closer together. Augustine examined the writings of Aristotle, who argued that a just society was possible by the exercise of a reasonable ordering of human affairs. Augustine took this idea further by stating that human order leading to a just society was possible only by conforming to God’s order. Aguinas stated that God built a natural order into His creation, and that this order operated by God-implanted principles. Aguinas called these principles the “Natural Law”. The natural law followed God’s design for how the world works. Because we human beings are part of the world, the natural law also governs the way human beings are to govern their relations with one another.

Because of sin, we humans cannot clearly see how each “natural law” principle operates to govern each complex legal or moral question that arises, but by operation of our God-endowed powers of reason and reflection, we can search for, and sometimes find, the outlines of the controlling law. God originally created us with a tendency to follow his laws perfectly, and even after original sin, we continue to bear this design. We still possess a natural inclination to do good. Stated differently, we are still aware by our consciences of a natural order of conduct, even as we sin.

So, we can at least state the broad outlines of the natural law. The primary natural law principle is that all created things seek after the “good”. A corollary is that evil is to be avoided. But these general terms of “good” and “evil” tend to beg the question. What are some of the “good things” we have a “natural inclination” to do? First among the “good” things we are created to naturally seek is life itself. Aguinas states that the first order of good is that we seek “whatever is a means of preserving human life and of warding off its obstacles. . .” (EN 33)

What is a “Person” Under the Constitution? (And Why Does It Matter?)

“We the People” have set out restrictions upon ourselves by our federal Constitution to prevent both the federal and state governments (and their judiciaries) from taking from “persons” the “Blessings of Liberty to ourselves and our Posterity”. “Personhood” under the federal Constitution is a requirement if you are to assert and enjoy the protections of the Constitution from governmental action. For example, only a “person” can invoke the equal protection of the laws to challenge a racially discriminatory application of the death penalty.

Without the right and protection of “Life” there can be no “Blessing of Liberty”. More fundamentally, without the protection of fetal human life, even our “Posterity” is under attack by the very government we formed to protect it.

Therefore, the question of what is “human life” and who are “persons” is a fundamental question. Is a pre-born human life a “person” entitled to the protections against the taking of life without due process of law and equal protection of the law? If so, then neither the individual States nor the federal government can take that life with any fewer protections than that accorded to persons charged with capital offenses.

Of course, enacted laws rationally allocate rights differently among “persons”. Minors and “incompetents” are denied certain “rights”. Persons over age 65 acquire rights to social security. Disabled persons are protected by the “Americans with Disabilities” Act. States protect children from physical abuse and from being forced to work. Yet all “persons” share one right guaranteed by the Constitution: the right to life. That right is the pre-condition of every other right.

In Roe v. Wade the unborn fetus was not a party to the action. Procedurally, in order to be a “party” the fetus first would have to be recognized in Texas law as a “person”. Then of course, an adult person would have to be appointed by a court to speak on behalf of the unborn child, and to assert its presumed preference to live rather than be aborted. (EN 26) More problematically, the Texas Court and the Supreme Court would somehow have to expedite their decisions and review to predate the completed gestation of the child, if the mother’s interest in freeing herself of the unwanted child by abortion was to remain relevant. The unborn child in Roe v. Wade was not a party, was unrepresented, was not treated as a “person” under the law, and was without a name. At best, the unborn child in Roe v. Wade was generically identified as a “fetus in utero”. By the time the case was heard before the Supreme Court, the Roe child was dead by abortion. The Justices must have found it very easy to ignore the unborn child’s personal interest in life.

The true holding of Roe v. Wade, the one that was the requisite for its horrific outcome, is that the unborn fetus is not a person under the law. As such, “it” is an object, nothing more than a biological mass coextensive with the “person” of the mother, and subject to disposition by her like any other body part. People may believe that Roe v. Wade restricts abortion at later stages. It does not. The essential holding is that the mother, on advice of her physician, has unlimited rights to destroy her unborn child right up to the time of birth. Yes, some post Roe decisions have held that the States may enact laws that restrict abortion if the law does not place an “undue hardship” on the mother’s right to abort. This “undue hardship” restriction is no restriction at all because the court has defined it to be any psychological burden on the mother, as defined not by the court or the states, but by her physician alone. Therefore, a mother may legally abort her unborn child at 9 months (for example, by partial birth abortion) because she would be depressed at the prospect at delaying her college education, or because of the inconvenience of giving the child up for adoption.

Of the 7 justices in Roe v. Wade voting to grant a federal license to abort, only Justice Harry Blackmun addressed the personhood issue directly in raising the question whether the fetus was entitled to equal protection of the laws. Certainly, this was a relevant question because equality is the characteristic par excellence of democratic freedom. If one is neither human nor a person, then one has no claim to equality with those who are human persons. The issue then is inescapable, although most of the jurists chose to ignore it. (EN 27)

In a major error of logic, Justice Blackmun began his analysis by noting that used the term “person” only to refer to post-natal humans. From this observation, he concluded that the Constitution could be extended to protect pre-natal humans. In effect, Blackmun reasoned that if the Constitution did not identify you explicitly as a person, you were not a “person”. Blackmun seemed to assume that the Constitution was a comprehensive compendium of the English language, a sort of Oxford English Dictionary of the Common Law or Natural Law, rather than a mere sketch of guiding natural law principles. The document does not of course define “person” any more than it undertakes to define the term “People” in the phrase “We the People”. Likewise, the Constitution does not use the term “woman” yet no one would presume to exclude from the class of persons or people the category of persons who are women. For that matter, the Constitution does not reference infants, the infirm, the various races, religious groups, immigrants, or numerous other classes of “persons.”

Nothing in a Constitution can be more important however than the idea of politically recognized “personhood’. Otherwise, the fundamental human right to life is subject to denial by any political subgroup that wants to marginalize or eliminate another subgroup. Hitler’s Nazi party did just this in 1938 when it enacted laws permitting the killing of the deformed or infirm, all in the interest of ridding society of the costs of carrying for these misfits, and in the interests of cleaning the gene pool of their presence. For Hitler, these persons did not bear the image of the Aryan state, and of course, since the state was supreme, they could not bear the image of God.

Blackmun and the Majority in Roe v. Wade were guilty of a more pernicious error of logic as well. Asserting that the concept of “personhood” was philosophically and scientifically in dispute, Blackmun concluded that the existence of that dispute precluded a legal conclusion that a pre-natal human was a “person”. The logic of this approach is that if segments of a democratic society differ on defining “person”, the Court is to conclude that a pre-natal human life is not a “person”. (EN 28) This logic is contrary to the function of the Court to follow Constitutional principles without regard to their popular acceptance. The Court is to address questions of fundamental liberty and equality even when those issues are contentious and lack popular consensus. Secondly, Blackmun’s implicit premise is that the Court either would not or could not weigh the merits of Texas law in view of these contending philosophical, moral, scientific and common law viewpoints. Blackmun was simply wrong as a matter of science that human life did not begin at conception.

He also engaged in a form of sophistry. Stating that the divergence of opinion on “personhood” prevented an understanding of when “person” status is to be conferred, Blackmun concluded inconsistently that a pre-natal life was not human and was not a “person” under the 14th Amendment. That is, having stated there was no standard by which to make the determination, he proceeded to make the determination—against the fetus. (EN 29)
Blackmun in truth relied on an unspoken and perhaps even unconscious philosophical position: radical autonomy. In this philosophical view, the law is determined by the personal values and beliefs of the individual rather than by independent ethical standards. The term often employed in Constitutional decisions to support this philosophical view is “privacy”, or the “right of the individual to be left alone”. In the context of Roe v. Wade, the right is articulated as the right of a woman to be left alone in determining the fate of the human life supported within her womb. There is no explicit “right of privacy” in the Constitution. Justices have implied the right as a transcendent right, needed to support and justify all the other more defined and lesser rights explicitly stated. Of course, we all like the idea of having the “right to be left alone”, and we often exercise that right in our relationships. (EN30) As in many things we humans do in our falling short of perfection, we can appropriate a good and turn it into an evil. Such is the case with this Constitutional “right of privacy”. The “right to be left alone” to take a vulnerable human life because it is on the wrong side of a uterus is a distortion of an otherwise good principle. Rights such as the “right to be left alone” are especially easy to twist to a bad result. A privacy right collides with the reality of our social relationships. Your privacy pushes against my privacy, or more relevant to the abortion issue, your right of privacy may collide with my right to life.

The argument for abortion rights is taken directly from the reasoning of Roe v Wade is that a woman has a qualified right to do with her body as she pleases because such right is found implicitly within the 14th Amendment as a “right of personal privacy”. (EN 31) So, the essence of the Court’s decision rests on the combined biological, legal, and unarticulated philosophical conclusion that the fetus is not a “person”, does not have a “body” of its own, and that its mother “owns” the fetus as her body. Therefore this woman can exercise an unwritten but implied constitutional “right of privacy’ to her own body to remove and kill a part of that body contained and supported by her womb. The logic of the decision is unassailable. By comparison, the legal coherence and ethics of its premises are easily assailed.

First, the court’s unarticulated premise is that the fetus does not have its own body, or, alternatively, if it has a body of its own, the mother owns that body as disposable property. This premise is contradicted conclusively by the genetic biology of the fetus, who exists as a unique combination of chromosomes producing a member of the human species. The DNA imprint of the child will place it conclusively in this category. More importantly, the DNA is active and living. That is, by natural or artificial means, the fetus is alive and developing rapidly according to its DNA blueprint. This internal genetic program is not connected or dependent on the mother’s DNA, and is distinct and separate from her body in the fundamental sense that the child has its own developing body. True, the child is drawing nutrients and homeostatic conditions needed for development from the mother, but in this regard, it is merely acting as a human infant who will continue to be dependent on adults providing stable conditions for its development after birth, through maturation, adulthood, and eventual old age. (EN 32)

Secondly, the Court implicitly defines the fetus as a presumed part of the mother’s body or as her biological property. In reaching this conclusion, the Court in effect reduces fetal human life to the status of legal non-persons. Doing so, the Court avoids the inevitable ethical question: does the mother’s right of privacy conflict with the unborn child’s own basic “right of privacy” to be left alone by a mother who wants to kills it, or more accurately, does the mother’s right of privacy conflict with the fetus’s more fundamental “right to life”? The irony of the Court’s reliance on the 14th Amendment is boldly clear. The People enacted the 14th Amendment to provide equal protection of the laws to all persons. Congress crafted the Amendment to address the inequities of slavery in the aftermath of the Civil War. In Roe v. Wade, the Court used the 14th Amendment to imply a “right of privacy” that included the “right to abort”. In a moral twist of a good law, the Court used the 14th Amendment to render the unborn child the biological slave of its mother, and gave her the right to dispose of it with impunity, even by death.

The Court’s reasoning, when reduced to its core, is nihilistic. That is, consistent with the philosophical view of nihilism, rights are determined by relative balances of power. The fetus is at conception of course most without power, particularly political power. It is in every sense helpless and vulnerable, and without a voice. Classical government comes to the protection of such persons, providing them with the conditions necessary to permit them to have equal access to the good things of life, especially life itself. In Roe v. Wade, the Court not only forgot its essential democratic purpose within the Constitution, it turned it upside down. It used its power to deprive the right of life to millions of persons it defined as non-persons, and it did so to serve the power needs of another class of more vocal (but no more entitled) persons. This other group of persons was adult women led by a “liberationist” vanguard seeking “freedom from oppression” in a male dominated society. This politically powerful group saw pregnancy as an impediment to their liberation, even a male conspiracy to “keep them in their place”. In their frenzy for autonomy, they asserted a “right to privacy” that removed an unwanted pregnancy as one of the tools of their oppressors. Justice Blackmun resolved the power equation in their favor, probably in the belief that he was part of the enlightenment of modern thinking. Yet, ethical standards tend not to be fashionable, but immutable. As it turns out, time is exposing that the Roe v. Wade majority violated fundamental human rights, and Blackmun’s mistake simply refuses to pass into obscurity.

Blackmun and the majority stepped out of their judicial roles into a political and legislative role to vindicate their personal social agenda. With time, Roe v Wade will be reversed because this usurpation of constitutional authority is patent, and because the logic and evidence for “person” status from conception is compelling.

Assume for a moment that a child’s total intrauterine dependence is a “disability” of 9 months gestation. The child’s prognosis is one of “full recovery.” Compare the status of the unborn child to that of a seriously injured adult person requiring hospital care and therapy over the same period of 9 months. Whether the disabled person was conscious or not, whether the person was able to talk, eat, walk, or respond, would all be irrelevant in view of the prognosis for “recovery”. A whole health care system, supported by insurance, exists for the care of these individuals. At the same time, we would not grant a parent’s or spouse’s petition to abort these life-sustaining measures because of the costs or inconvenience that resulted.

The unwritten premise of the Supreme Court in Roe v. Wade is that the fetus’s location and dependence within the womb disqualified it completely from consideration for “personhood” under the Constitution. The Court failed in a basic duty of its office—it failed to apply the laws equally to all, including the voiceless and the defenseless. A more logical approach supported by the scientific evidence would have been to balance the unborn child’s right to life against the “liberty” and “autonomy” interest of the mother. I believe the majority in Roe v. Wade did not want to weigh that evidence or engage in that analysis because the Court had already reached a political decision that abortion was a woman’s right.

A Fatal Lack of Logic in the Law.

Because fetal life is human life, the killing of a fetus has profound moral significance. Roe v Wade gave women complete license to kill their unborn children. (EN 24)

The killing of a human being is “homicide”, and the killing of infant human beings is “infanticide”. Abortion is a form of infanticide because the living being in the womb is genetically human, and will develop by its own internal genetic coding into a “viable” and birthed person within 9 months assuming stable biological conditions. (EN 25)

The issue is whether the killing is “justified homicide”. “Homocide” is of course a term taken from the criminal law, and abortion, because of Roe v. Wade, is no longer a legally defined crime. Still, the logic of the criminal law, and the logic of science, together with ethical considerations, lead to the conclusion that human beings are being killed, and that a presumption exists that such killing is wrong unless it can be justified.

In the criminal law, the usual legal excuse for homicide is self-defense, a defense not applicable to abortion. In abortion, the offered justification in Constitutional terms is that the woman who carries the child has an interest in “liberty” and “autonomy” that trumps the “State’s interest” in protecting unborn fetal life. As any parent will testify, “autonomy” and “liberty” are of course restricted by the responsibilities of parenthood. Parents chose differently because they sacrifice for their children. The “liberty” and “autonomy” interest is really about not being required by law or nature to “sacrifice” for the life and well-being of a living child. Put bluntly, when weighed against the sacrifices of parenthood, the parents decide it is better to kill the child. Federal constitutional law, created by Roe v. Wade, allows this choice if the child is still in the womb, and even protects the act of killing against laws that interfere with it.

By examining the “justified homicide” conclusion in cases like Roe v. Wade and Stenberg v. Carhart, we can weigh for ourselves whether the decisions are rationally and ethically sound. Why should we engage in this process? Because the issues of life and death are so fundamental to who we are as individuals and as citizens that we cannot privatize these decisions, but must speak out boldly to address them.

Scientifically, When is a Human Being a Human Being?

Sometimes pro-abortionists will argue that the fetus is not really a human being. There is no scientific support for this argument.

“Humans” are distinguished by their genetic code. The combination of sperm and ovum create a unique blend of 23 chromosomes from each parent. The resulting combination produces a DNA that operates as the program for the full rapid replication, differentiation, and development of human cells into a human body. Think of this DNA program as a dynamic blueprint for construction of a human body and nervous system. The blueprint is dynamic because the instructions are not only present, but the materials and delivery mechanisms are present to carry out the blueprint under the right conditions, usually thought to be “gestation”. The entire process is self-contained, and produces an inherently unique identity. As a human being develops, a molecular chemical exchange turns on some genes and turns off others. In this way, the shaping and construction of a “human” occurs. The process and intelligence of this genetic switching process is contained within “human” DNA.

The change within the initial cluster of human cells is most dramatic at conception, but continues to change even outside the uterus, and if this human being lives a full life into old age, it will continue to change in ways that cause it to look dramatically different than decades earlier. At various stages of human life, the human being is in different degrees of dependence and disability. Yet, whether in the womb, an incubator, a playroom, an elementary school, a workplace, a hospital, an extended care facility, an I.C.U., or a hospice, the being is uniquely human. This human character is not philosophical, religious, or ethical. It is a biological fact.

D. The Barbaric Language of Death as Spoken by The United States Supreme Court .

What follows are excerpts of the Stenberg v. Carhart partial abortion case. The excerpts are taken from both the majority and minority portions of the opinion. I present the excerpts verbatim, without further comment, because I believe they will impress you that abortion is an evil in our society, and that Roe v. Wade and cases following it, have led us to the point of open barbarism and unmitigated cruelty:

Justice Breyer, writing for the Majority

:

Considering the fact that those procedures seek to terminate a potential human life, our discussion may seem clinically cold or callous to some, perhaps horrifying to others. There is no alternative way, however, to acquaint the reader with the technical distinctions among different abortion methods and related factual matters, upon which the outcome of this case depends. For that reason, drawing upon the findings of the trial court, underlying testimony, and related medical texts, we shall describe the relevant methods of performing abortions in technical detail.
During the first trimester, the predominant abortion method is “vacuum aspiration,” which involves insertion of a vacuum tube (cannula) into the uterus to evacuate the contents.
Today, however, the medical profession has switched from medical induction of labor to surgical procedures for most second trimester abortions. The most commonly used procedure is called “dilation and evacuation” (D&E). That procedure (together with a modified form of vacuum aspiration used in the early second trimester) accounts for about 95% of all abortions performed from 12 to 20 weeks of gestational age. Abortion Surveillance 41.
“D&E is similar to vacuum aspiration except that the cervix must be dilated more widely because surgical instruments are used to remove larger pieces of tissue.

(STILL DESCRIBING D&E):

After 15 weeks:
“Because the fetus is larger at this stage of gestation (particularly the head), and because bones are more rigid, dismemberment or other destructive procedures are more likely to be required than at earlier gestational ages to remove [*21] fetal and placental tissue.” Id., at 491.
After 20 weeks:
“Some physicians use intrafetal potassium chloride or digoxin to induce fetal demise prior to a late D&E (after 20 weeks), to facilitate evacuation.” Id., at 491-492.
At trial, Dr. Carhart and Dr. Stubblefield described a variation of the D&E procedure, which they referred to as an “intact D&E.” See 11 F. Supp. 2d, at 1105, 1111. Like other versions of the D&E technique, it begins with induced dilation of the cervix. The procedure then involves removing the fetus from the uterus through the cervix “intact,” i.e., in one pass, rather than [*24] in several passes. Ibid. It is used after 16 weeks at the earliest, as vacuum aspiration becomes ineffective and the fetal skull becomes too large to pass through the cervix. Id., at 1105. The intact D&E proceeds in one of two ways, depending on the presentation of the fetus. If the fetus presents head first (a vertex presentation), the doctor collapses the skull; and the doctor then extracts the entire fetus through the cervix. If the fetus presents feet first (a breech presentation), the doctor pulls the fetal body through the cervix, collapses the skull, and extracts the fetus through the cervix. Ibid. The breech extraction version of the intact D&E is also known commonly as “dilation and extraction,” or D&X. Id., at 1112. In the late second trimester, vertex, breech, and traverse/compound (sideways) presentations occur in roughly similar proportions. Medical and Surgical Abortion 135; 11 F. Supp. 2d, at 1108.
. The breech extraction version of the intact D&E is also known commonly as “dilation and extraction,” or D&X. Id., at 1112. In the late second trimester, vertex, breech, and traverse/compound (sideways) presentations occur in roughly similar proportions. Medical and Surgical Abortion 135; 11 F. Supp. 2d, at 1108.

Following is Justice Rehnquist’s dissent, joined by Justice Kennedy, as part of the Dissent

:

As described by Dr. Carhart, the D&E [*78] procedure requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina. Id., at 61. Dr. Carhart uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body. Ibid. The traction between the uterus and vagina is essential to the procedure because attempting to abort a fetus without using that traction is described by Dr. Carhart as “pulling the cat’s tail” or “dragging a string across the floor, you’ll just keep dragging it. It’s not until something grabs the other end that you are going to develop traction.” Id., at 62. The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. Id., at 63. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off. Dr. Carhart agreed that “when you pull out a piece of the fetus, let’s say, an arm or a leg and remove that, at the time just prior to removal of the portion of the fetus, [*79] . . . the fetus [is] alive.” Id., at 62. Dr. Carhart has observed fetal heartbeat via ultrasound with “extensive parts of the fetus removed,” id., at 64, and testified that mere dismemberment of a limb does not always cause death because he knows of a physician who removed the arm of a fetus only to have the fetus go on to be born “as a living child with one arm.” Id., at 63. At the conclusion of a D&E abortion no intact fetus remains. In Dr. Carhart’s words, the abortionist is left with “a tray full of pieces.” Id., at 125.
The other procedure implicated today is called “partial-birth abortion” or the D&X. The D&X can be used, as a general matter, after 19 weeks gestation because the fetus has become so developed that it may survive intact partial delivery from the uterus into the vagina. Id., at 61. In the D&X, the abortionist initiates the woman’s natural delivery process by causing the cervix of the woman to be dilated, sometimes over a sequence of days. Id., at 492. The fetus’ arms and legs are delivered outside the uterus while the fetus is alive; witnesses to the procedure report seeing the body of the fetus moving outside the woman’s body. Brief for [*80] Petitioners 4. At this point, the abortion procedure has the appearance of a live birth. As stated by one group of physicians, “as the physician manually performs breech extraction of the body of a live fetus, excepting the head, she continues in the apparent role of an obstetrician delivering a child.” Brief for Association of American Physicians and Surgeons et al. as Amici Curiae 27. With only the head of the fetus remaining in utero, the abortionist tears open the skull. According to Dr. Martin Haskell, a leading proponent of the procedure, the appropriate instrument to be used at this stage of the abortion is a pair of scissors. M. Haskell, Dilation and Extraction for Late Second Trimester Abortion (1992), in 139 Cong. Rec. 8605 (1993). Witnesses report observing the portion of the fetus outside the woman react to the skull penetration. Brief for Petitioners 4. The abortionist then inserts a suction tube and vacuums out the developing brain and other matter found within the skull. The process of making the size of the fetus’ head smaller is given the clinically neutral term “reduction procedure.” 11 F. Supp. 2d 1099, 1106 (Neb. 1998). Brain death does not occur [*81] until after the skull invasion, and, according to Dr. Carhart, the heart of the fetus may continue to beat for minutes after the contents of the skull are vacuumed out. App. 58. The abortionist next completes the delivery of a dead fetus, intact except for the damage to the head and the missing contents of the skull.

C. The Accidents of Size and Location of Life.

Consider this: D&E generally occurs by reaching into the cervix to dismember the fetus piece by piece. Generally, a leg or arm is pulled through the cervix, and the resistance of the cervix itself provides the abortionist with enough traction to pull the arm or leg from the body still within the womb. In this way, the abortion proceeds until all the body parts are removed. Death usually occurs because the fetus bleeds to death. The Nebraska law did not seek to restrict this procedure, and indeed, it argued that the D&E procedure was an acceptable safe alternative to D&X, or partial birth abortion. Yet, the D&E procedure is no less gruesome, and maybe more gruesome that the D&X procedure, which is largely intact, with the exception of the collapsed skull. (EN 22)

One of the more irrational aspects of Stenberg v. Carhart is the Court’s focus on the D&X procedure (partial birth), to the exclusion of the equally abhorrent procedure of D&E. The essential difference in the two procedures is that one is conducted with the fetus still in the womb, while the other procedure is conducted with the fetus intact lower body in the birth canal, but with its head in the womb. Yet, the Court spent considerable time and energy examining the State’s interest in limiting the D&X procedure because it was supposedly somehow more obnoxious and inhuman that the D&E procedure. The difference in the two situations is merely the location of the fetus, as if location had any logical relevance to the human and legal rights of the Child. Stated differently, the ban on partial birth abortion seems to attribute some arbitrary significance to whether the abortionist conducts his business by attacking the fetus within the womb or outside the womb. The morally correct decision of course would focus on the character of the fetus’s life as human and in the image of God, without regard to its location. (EN 23)

B. A Short Review of Abortion Procedures under Review by the Court.

As you read the opening paragraphs of Stenberg v. Carhart, you will receive a review of abortion procedures practiced at different stages of pregnancy. The Court gives this background because it must address the Nebraska law which specified for limitation only one of these procedures, commonly known as “partial birth”.

In summary, there are three types of abortion procedures reviewed by the Court. The first is the prevalent method used during the first trimester, and known as “vacuum aspiration”, where fetal “tissue” is pulled out of the uterus through a vacuum tube. However, later term abortions present a problem. The more developed fetus of course presents more “tissue” for removal, some of which is in the form of bone. The skull especially is too large at this point to be “extracted” completely and easily. Therefore two steps are taken. First, the opening to the uterus, or cervix, is dilated. Second, the skull is collapsed by the insertion of a scissors or other sharp object, and the brain is suctioned out, and the skull fragments collapsed and removed.

Where brain suctioning occurs with the body of the fetus mostly still within the uterus, the procedure is called Dilation and Evacuation (or D&E). Where the fetus presents feet first, either naturally, or because the abortionist grabs the feet by an instrument, and “converts” the fetus to a feet first position (breech), a third procedure is sometimes used in late term abortions: Dilation and Extraction (or D&X). (EN 21) In this procedure, the body of the fetus is pulled intact (whole) into the birth canal, with only the head still within the uterus because the skull is too large to pass through even the dilated cervix. The skull is then pierced, the brain suctioned out, and the head collapsed, allowing the entire body to be pulled through the birth canal. This D&X procedure is the “partial birth” procedure which was prohibited by the State of Nebraska in Stenberg v. Carhart.

A Gruesome Introduction to Your Supreme Court.

A. A Short Technical Background on Abortion Law.

Stenberg v. Carhart brought the reality of late term abortions vividly and graphically into the forefront of the Court’s understanding. The Court even outlined the horrific “procedure” required to terminate the life of a nearly viable fetus. Yet, this same Court decided that a woman had the constitutional right to destroy human life even at this late stage of development. How did the Court reach a conclusion that the horrific practice of partial birth abortion was a woman’s right? To reach this conclusion, the Court had to extend the reasoning of Roe v. Wade to its further evil conclusion: the sole arbiter of when a woman’s health will trump the life of an unborn child will be a matter for her and her physician alone to decide. Stated differently, the ethical issue will be decided by the individual rather than society, and the individual’s personal ethical standards, together with the physician’s personal and unchallenged idea of “health of the mother” will control over any other standard, whether social, legal or ethical. (EN 10)

This unchecked discretion placed with the physician is exacerbated by the apparent lack of any distinction between physical health and mental health. Mental health exceptions are based on less objective measures than physical health risks. Nevertheless, abortionist physicians not specialized in psychiatry can interpret almost any emotional complaint as basis to abort. Even at the point of near viability, the state’s effort to impose more stringent psychological assessments and verifications would likely be found to unduly burden a woman’s access to abortion. (EN 11)

In earlier decisions, the court defined the right of a woman to abort as different before fetal viability (considered medically to be 24 weeks) (EN 12) and after. Up to about six months, a woman has the legal right to kill her child free of any “substantial burden” imposed by the State. This restriction is virtually no restriction, and the net effect is that courts have not allowed the states to prohibit abortions during this six months. This position is itself extraordinary given current medical evidence of the degree of brain development of a fetus at 6 months. (EN 13) In fetal development, the brain is the fastest developing part of the human body, which is why many prematurely born infants often develop without loss of intellectual capacity.

Post-viability, the actual application of the law is not much different than pre-viability, although the language of constitutional law, if trusted to have content and purpose, would lead you to believe abortion could be prohibited in some circumstances. Specifically, the Court has held that post viability, the State may restrict, even prohibit, abortions if the restrictions advances the state’s interest in “protecting potential human life” and if the abortion is not needed for the life or health of the mother. (EN 14) Read that last sentence again carefully. How is “health of the mother” to be defined, and who is to define it? The simple legal answer is that the only person making this decision is the mother’s physician, and he or she is virtually unaccountable to any objective legal standard or criteria limiting his or her definition. (EN 15)

In Stenberg v. Carhart, the State of Nebraska outlawed partial birth abortions except when the procedure was necessary to protect the life of the mother, but omitted an exception to allow the abortion for the “health” of the mother. (EN 16) The Court therefore found itself examining whether Nebraska’s statute prohibiting partial birth abortions was valid even in the absence of an exception for the mother’s “health” because other abortion procedures were as safe or safer, and were as available. (EN 17) The trial court, the 8th Circuit Court of Appeals, and the U.S. Supreme Court each held the statute unconstitutional based on the precedents set by Roe v. Wade and Planned Parenthood v. Casey. In effect, the Court found that partial birth abortion was, or possibly could be, more protective of the health of the mother than other available abortion procedures. (EN 18) [Although the actual evidence to reach this conclusion was highly equivocal] In this legal calculation, the Supreme Court, following the inevitable logic of Roe v. Wade, gave no weight to the life or health of the “partially born” child. The partially born child in Stenberg v. Carhart was completely abandoned by the Court because it had no independent constitutional status as a “person”, and the State was held to be incorrect in concluding the partial birth abortion procedure was so barbaric that it required no “exception for the health of the mother”. All that mattered to a majority of the Supreme Court was that Dr. Carhart’s unilateral assessment of the marginally improved health of the mother should control, and the Nebraska statute did not recognize Dr. Carhart’s judgment or opinion on that subject as controlling.

After 28 years of practicing law, I was never so amazed, dismayed, and even horrified at reading a court decision as that found in Stenberg v. Carhart. The case frankly stands apart from any I know of for sheer graphic accounting of how death occurs to a fetus during a late term abortion. The fact is that the justices themselves seem to fully aware that the decision they reached would shock the American moral conscience, and Justice Bryer, writing for the majority, begins the written opinion with an acknowledgment that the description will seem horrific to some. Still, as if living in a world where mind and morality (EN 19) are divided, five justices proceeded to give license to a death procedure that can only be described as brutal and inhuman. These five justices not only denied the infant any right to live, but did so after detailing the dismemberment, bleeding, and dying of the infant in cold technical detail. My first feeling after reading the decision was that the Court had lost its mind, and certainly its heart. Secondly, I became convinced that the greatest hope for the reversal of such an insane course was to expose the decision to the American public. I am convinced that most Americans reading the decision will rise up in moral rebellion to denounce the Court, and to take actions to convince elected officials to put an end to the insanity. The best hope for ending this immoral constitutional license to kill innocent life is the appointment of justices in the next 4 years who will swing the majority to overturn Roe v. Wade. (EN 20) “We the People” should do all in our power to persuade our President and Congress to select and approve pro-life jurists to the Supreme Court in the next three years.

The Partial Birth Abortion Procedure (EN 7)

How did the United States Supreme Court, the secular keeper of our national values, come to the point that five of its members could conclude that Nebraska could not stop this barbaric and cruel practice? The answer can be given at different levels. Foremost, the decision represents a logical extension of the original rights conferred on a woman to abort first outlined in Roe v. Wade in 1973. That decision conferred no constitutional protection upon the unborn child. Secondly, the Court’s partial birth decision represents the product of a Court trapped by its own original mistake in using its power to legislate rather than decide outcomes. That is, the Court’s original mistake in Roe v. Wade was that it surveyed the political climate of the time, acknowledged politically contentious positions on an unsettled moral debate, and created social policy crafted from the political biases of the judges on the Bench at that time. Spiritually, the Court lost its sense of ultimate accountability to God, and abandoned the guiding premise that this nation was founded upon allegiance to a Divine Providence.

After Roe v. Wade, the unborn had no power, and was deemed nothing more than a disposable body part. Although Roe v Wade allowed the States to have some limited power to protect their interest in “potential” human life, this limited power resided only in the State, not the child, and only then only late in the gestation. Further, the States were rebuffed repeatedly by the Court’s requirement that almost any state inference in obtaining an abortion was an “undue burden” upon a woman’s exercise of personal autonomy. (EN

California provides almost no protection to pre-born persons. A woman 9 months pregnant can legally obtain an abortion in California. Other states are more protective of the pre-born. The U.S. Supreme Court has given the individual states the authority to restrict abortions severely in its “post-viability” stages, that is, at about 24 to 26 weeks of gestation. (EN 9) Citizens of states like California may not realize that their legislatures have failed to draw the line of death at the place of greatest protection, and may believe that their individual state legislators are not responsible. On the contrary, a pro-abortion majority may allow abortions when they could be constitutionally restricted or prohibited completely.

How did it come to this? Norma McCorvey is the “Jane Roe” of Roe v. Wade. On January 17, 2005 she announced at a news conference at the Supreme Court that she wanted the Court to reverse Roe v. Wade, or at least order a trial on the merits. In her filed request with the Court, she argued that factual and legal changes make the decision no longer just. She also argued that options are now readily available through state laws that allow women to take their “new born” to a safe haven anonymously. Finally, she stated from her personal experience as an abortion clinic worker that the emotional harm to women is devastating. (EN 1) The truth is that Norma McCorvey’s change of position is due to a change of heart, a life change that occurred because she gave that life over to the care and service of her Creator. Norma converted to Christianity years ago. It is not accidental that she went from anonymity (as Jane Roe) to full disclosure as Norma McCorvey. She is bold to expose her own mistakes, and to expose the darkness of the present Culture of Death. (EN 2) Norma McCorvey now runs an anti-abortion ministry. (EN 3)

Norma’s personal conversion I pray will occur more deeply in my own heart, and in the heart of all persons in our nation. I especially pray that conversion will occur in the hearts of policy makers and jurists. These men and women have been entrusted with much, and therefore much will be expected of them in the Kingdom. (EN 4) Yet, the Court’s decisions are unredeemed, and have produced inhuman and uncivilized outcomes. Most recently, the court in Stenberg v. Carhart (EN 5) held that the partial birth abortion procedure could not be restricted by the State of Nebraska, which enacted a law that prohibited the procedure. (EN 6) The court, in reaching its decision, described in macabre and shocking detail, the manner in which the procedure is performed. Essentially, a fully formed but unborn child is ripped apart piece by piece, and bleeds to death. The procedure proceeds like this:

Guided by ultrasound, the abortionist grabs the baby’s leg with forceps.

The baby’s leg is pulled out into the birth canal.

The abortionist delivers the baby’s entire body, except for the head.

The abortionist jams scissors into the baby’s skull. The scissors are then opened to enlarge the hole…

The scissors are removed and a suction catheter is inserted. The child’s brains are sucked out, causing the skull to collapse. The dead baby is then removed

CT Classic: The Abortion Wars
What most Christians don’t know about the history of prolife struggles.
By Tim Stafford | posted 01/22/2003

Ours is not the first abortion war. Two previous periods saw protracted contests over whether abortion would be accepted or proscribed.

The first was in the early centuries of Christianity, when faith spread within a Greco-Roman culture that considered abortion (and infanticide) routine. The second was in America during the mid-nineteenth century when abortions became widespread, freely advertised in virtually every newspaper.

The third abortion war is now approximately [30] years old and shows no sign of peace. Living in a battle zone, we can easily focus on the tactics of the moment and forget the wider context. The danger in forgetting is that when the situation suddenly shifts, as it did in 1973 with Roe v. Wade and in 1989’s Webster decision, we get thrown off. Suddenly the tactics we had honed become irrelevant, and the goals we had set are outdated.

The first war
People commonly suppose that abortion is an invention of modern, technological medicine. In fact, it was well known in Greco-Roman society. Plato’s Republic made abortion or infanticide obligatory if the mother was over 40. In Aristotle’s ideal society, abortion would be compulsory for families that exceeded a certain size.

Aristotle also made a distinction that would develop a life of its own: the “formed” versus the “unformed” fetus. Aristotle believed that human life was present in the fetus when distinct organs were formed, 40 days after conception for males and 90 for females. This was a metaphysical, not a moral, distinction; Aristotle would abort both “formed” and “unformed” fetuses. But some Christians—Augustine of Hippo and Thomas Aquinas in particular—would later adopt his distinction. It survived in various forms right down to the arbitrary trimesters of Roe v. Wade.

Both Plato and Aristotle believed that a child had life long before birth; it was just that the welfare of society and family were more important to them than the rights of a child. The Roman empire made the same assessment while adopting the Stoic belief that life begins only at birth. Abortion was common. As Michael Gorman puts it in Abortion and the Early Church, the Roman empire was paradoxically “profamily but not fundamentally antiabortion. That the fetus is not a person was fundamental to Roman law. Even when born, the child was valued primarily not for itself but for its usefulness to the father, the family and especially the state.”

Many Romans opposed abortion, but Gorman says, “Pagan antiabortion statements are consistently mindful of the welfare and rights of the state, the father, the family and even occasionally the woman, but never those of the fetus. … Christians discarded all pagan definitions of the fetus as merely part of the mother’s body. To Christians, the fetus was an independent living being.”

From the first, Christians were outspokenly opposed to abortion on the basis of the child’s right to life. The Didache, an early second-century document summarizing Christian belief and practice, declares, “Thou shalt not murder a child by abortion/destruction.” Clement of Alexandria, Tertullian, Jerome, Basil the Great, Ambrose—all pronounced against abortion. Tertullian wrote eloquently in his Apology, aimed at non-Christians: “To hinder a birth is merely a speedier man-killing; nor does it matter whether you take away a life that is born, or destroy one that is coming to the birth. That is a man which is going to be one; you have the fruit already in the seed.”

That is how Western society came to be antiabortion. Although the church’s antiabortion arguments were consistent and insightful, the change in society was due more to the fact that Christians won the empire to their faith. Not long after Constantine legalized Christianity, it was made illegal for a father to kill his children. Roman abortion laws were never changed, but as the institutional church’s role grew more important, ecclesiastical penalties for abortion—their severity was between those for manslaughter and murder—became meaningful legislation for the entire society.

No one can say to what extent behavior changed. What is sure is that a stable antiabortion consensus, based on Christian values, had been formed. It endured intact throughout the medieval period and into modern times.

Through Augustine, Aquinas, Luther, Calvin, and on to Barth and Bonhoeffer, Christian theologians have condemned abortion in the clearest terms. Aristotle’s distinction between the formed and unformed fetus was carried on by some, for whom abortion was only murder 40 days after conception. (Yet even before then, it was a violation of developing humanity, and thus still wrong.) Therapeutic abortion, in which the life of the unborn can be sacrificed to save the life of a mother, was sometimes allowed. But the values of Greco-Roman society, in which the life of a child had meaning only as state or family granted it meaning, would not resurface for 1,500 years.

The second war
There were no written laws against the practice of abortion in colonial America; courts operated on the basis of English common law, by which abortion was illegal after “quickening,” the time when a mother could feel the movement of her unborn child in the womb. The “quickening” distinction seems to have been a survival from the Aristotelian idea of a “formed” fetus, as it filtered through centuries of theological discussion.

“Quickening” might not have survived on the strength of its history alone, though; it had practical significance as well. There were no reliable pregnancy tests, and so until quickening, no one could be certain whether a woman was actually pregnant or merely experiencing some kind of menstrual “blockage.” Doctors treated a “blockage” by doing just what they would do to carry out an early abortion. Before quickening, it was impossible to say whether an abortion was intended. There was no point in outlawing behavior that could not be ascertained.

In fact, since “quickening” was generally only known to the woman involved, it was legally difficult to try any kind of abortion case. American courts steered a lenient course with the few cases that came before them. In 1803 Britain passed a strong and clear antiabortion law, but it was not until 1821 that Connecticut passed the first American antiabortion statute. By 1840 most states still had no such law, and those that did rarely enforced them.

A dramatic change began in the decades after 1840: the number of abortions shot up. American conception dropped precipitately: the average American woman bore seven children in 1800, three and a half by 1900. Estimates of abortions ranged between one-fifth and one-third of all pregnancies. Before, abortion had been the refuge of desperate, unmarried women; now most abortions were by married women, using it as birth control. Abortion operations were not regarded as particularly dangerous, and the belief in quickening made them seem innocent as well. This was a period of rapid industrialization, with growing cities and easy transportation by railroad. Along with many aspects of American life, abortion became commercialized.

In 1838 Charles and Anna Lohman, adopting the names of Dr. Mauriceau and Madame Restell, began to advertise extensively in the New York Herald. They were the first to seize an opportunity offered by a new kind of newspaper that sold cheaply, circulated widely, and depended on advertising revenues to make a profit. Madame Restell’s business flourished; she soon opened branch offices in Boston and Philadelphia, and moved into a lavish mansion on Fifth Avenue.

Others imitated her. Soon newspaper ads offered a whole portfolio of potential abortionists. They had the political and economic influence to protect themselves; historian James Mohr notes, in one example, that “between 1849 and 1857 there were only thirty-two trials in Massachusetts [under a new, toughened law] for performing abortions and not a single conviction.” Newspapers avoided the subject. Only one, the sensational National Police Gazette, reported on and crusaded against abortion. (Not coincidentally, it did not take abortion advertising.)

The increase in abortion, however, led to a counterreaction. The most visible group opposing abortion were “regular” doctors. The American Medical Association (AMA), formed in 1847, took up antiabortion as its cause. Though the AMA was a group with insignificant power, and the medical profession was at an all-time low in prestige, “regular” doctors did raise the issue before the legislature.

The religious establishment did not. Protestant clergy had considerable prestige and were important in other reform movements of the time—notably temperance—but to the dismay of doctors, most churches ignored the issue. No one really knows why; perhaps the topic was too delicate. Catholics, mainly immigrants, were not having abortions like Protestants, and Catholic leaders were at that time in no position to exert political influence.

The rising feminist movement was against abortion. Not even the most radical considered abortion to be an instrument of freedom for women; on the contrary, abortion was understood to be an aspect of male domination, whereby (outside marriage) men tried to conceal the results of their seduction, or (inside marriage) women behaved tragically because of the terrible conditions of a home governed by a tyrannical husband.

In 1870, under a new editor, the New York Times began to campaign actively against abortion. Their investigative reports were too sensational for other newspapers to let pass; soon widespread press attention forced prosecutors to act. The more they acted, the more sensational news was available to report (the bodies of young women found dismembered in trunks; numbers of babies found buried in basements). Marvin Olasky notes in The Press and Abortion that Madame Restell became “an object of general hatred in New York City. Occasionally, her carriage would be chased down Fifth Avenue by a volley of rocks, and by shouts of ‘Madame Killer.’ “In 1878 she was arrested and could not buy her freedom as she had in previous cases. The night before she was to be tried she committed suicide. The Times headlined the news: “End of a Criminal Life.”

Gradually, through the century, laws were toughened. The quickening distinction was dropped. Under the Comstock Act of 1873, abortion advertising became illegal nationally. By the end of the century, abortion was illegal everywhere; and while veiled advertising continued (the Comstock Act was seldom enforced), observers reported that abortions greatly decreased.

The antiabortion crusade was successful despite the fact that only regular physicians publicly worked for it. They were not a particularly influential group, but they did have confident scientific knowledge on their side. Doctors had known since early in the century that the “quickening” distinction was without merit—that the development of the unborn child was gradual from the time of conception.

Some recent histories have commented on the quickening distinction as though it had preserved a right to abortion for women, but that is a classic case of imposing modern thinking on a historical situation. The law and common belief had always held that it was wrong to abort a child once it had life, after quickening. The doctors could presume that society’s moral commitments would lead to the banning of abortion once enough people understood that life was at stake from the beginning.

The third war
Yet the success of the nineteenth-century crusade was short-lived. The life of an unborn child is easy to ignore—invisible and voiceless. The New York Times, which had led the press crusade to stop abortions in the 1870s, suddenly stopped reporting on it at all in 1896, when Adolph Ochs assumed ownership and introduced two new slogans: “All the News That’s Fit to Print” and “It Does Not Soil the Breakfast Cloth.” Abortion news was apparently not fit to print, for it did soil the breakfast cloth.

The National Police Gazette no longer crusaded against abortion either; it now took abortion ads. Other newspapers reported occasionally on lurid abortion cases, but journalism professor Olasky notes a change. In the late nineteenth century, press coverage often referred to abortion as the killing of unborn children. Stories in the twentieth century rarely mentioned the unborn; the focus was exclusively on the dangers of abortion to women.

Doctors also lost interest. By early in the twentieth century the AMA had regulated the irregulars (whose nineteenth-century abortion practices had threatened to take away patients and income from regular doctors) out of business, and had no more need to appeal to the legislature for the control of medical business. Doctors could regulate themselves—but showed little interest in interfering with the practices of their fellow regulars.

There was, therefore, no one to show an interest in the lives of the unborn. The American clergy never had. Sexual behavior grew more promiscuous in the Roaring Twenties, and perhaps the failure of Prohibition made America less interested in moral reform. The Soviet Union legalized and promoted abortion, to the acclaim of some. Population-control groups such as Planned Parenthood began cautiously and privately to favor abortion. So did some doctors, mainly on the basis of their claim to know what was best for the welfare of their patients without governmental interference.

Contrary to popular assertions, the number of women who died from “back-alley abortionists” was small; according to the Kinsey Report, 85 percent of abortions were done by doctors, and the number of annual deaths declined steadily, to an estimated 300 by 1967. The deaths were tragic whatever the number, but far more significant in putting abortion back on the public agenda was doctors’ discomfort with the rigidity of the antiabortion laws.

Perhaps the most important thing to remember about the beginning of the third abortion war was that it seemed to be about a relatively small change in the law—”abortion reform,” as it was called. The “right to abortion” was not an issue, at least for women; if anyone’s rights were at stake, they were the doctor’s. In 1959 the prestigious American Law Institute (ALI) published a new “model code” for state legislatures. It would allow a doctor to perform abortions in cases of rape, incest, serious deformity, and whenever the doctor believed there was risk to the mental or physical health to the mother. The word believed was significant, because it meant a doctor was virtually immune from prosecution so long as he would claim, whatever the medical facts, that he had believed them threatening. Few imagined that such terminology could become an open door to abortion on demand.

Protestants, and even many Catholics, had historically recognized the validity of what is called therapeutic abortion. Abortion reform purported to expand the categories of those tragic decisions. Suppose that the birth of a child conceived by rape threatened to destroy the mother’s mental stability; could not an abortion be considered life saving?

Such “hard cases” were real, and proabortionists could expand on them at length. They were received sympathetically in the press, and seemed, in the light of publicity, to be far more numerous than they really were. One well-publicized event brought the abortion issue into public view.

In 1962 an Arizona “Romper Room” TV hostess named Sherri Finkbine learned that a drug she had been taking during pregnancy, thalidomide, had caused numerous birth defects in Europe. She applied for a therapeutic abortion and was granted one by a committee of three doctors. But Finkbine talked to reporters before the scheduled abortion, to warn others about the dangers of thalidomide.

The hospital, wary of public scrutiny, refused to allow the abortion until an advance court judgment was made that the abortion was legal. A judge said that he could make no ruling unless someone had filed a complaint. No one was complaining, but cautious hospital officials were not willing to go ahead without official assurances. The legally complex case was presented in the press as a woman persecuted by an inhumane, hypocritical legal system. Ultimately, Finkbine traveled to Sweden to have an abortion. Her story had a strong emotional hook, enabling many Americans to identify with the plight of a woman who believed she was bearing a deformed child.

In 1967 the AMA voted in favor of legal reform. In the same year the National Organization for Women came out in favor of abortion, and feminists joined the cause. A number of states passed reforming legislation, along the ALI recommended lines, which would give physicians greater latitude in performing therapeutic abortions.

Another issue arose, adding to the apparent urgency: the “population explosion.” In a few short years, experts said, the world would starve to death unless population growth could be stopped. This was one of those crises that rises in a media-saturated society, riveting attention until it mysteriously disintegrates. It made abortion into a strangely conservative cause, and raised a very different set of issues: not abortion as tragic choice, but abortion as crusade to save the world. The campaign for abortion-law reform began to turn into a campaign for abortion-law repeal. In 1969, the National Association for the Repeal of Abortion Laws (NARAL) was formed. Many denominations—Lutherans, Methodists, Presbyterians—supported their cause.

But the movement was beginning to outdistance its popular support. The American public was sympathetic to therapeutic abortion, but solidly against abortion on demand. In 1970 New York, Alaska, Hawaii, and Washington repealed their abortion laws; by then, 13 other states had passed some form of reform legislation. But after 1970 resistance arose, and only one more state, Florida, passed a reform bill. In several other states, reform or repeal were rebuffed. In New York, the legislature tried to reimpose abortion controls, but these were vetoed by Gov. Nelson Rockefeller.

Thus the proabortion movement shifted its energy toward the courts, a tactical shift that was to prove fateful.

Who was against?
Press accounts of the late sixties and early seventies gave a clear picture of who stood against abortion: the Roman Catholic Church. This stereotype of antiabortionists was actively encouraged by proabortionists, who believed it would paint the opposition as narrow and sectarian. Actually, in the general public, Protestants were as likely to be against abortion as Catholics. Yet there was some truth to the caricature: Catholics brought determination and national organization to the cause. The bishops could and did draw up a national plan for opposing abortion, while Protestant antiabortionists remained splintered and disorganized.

It is startling to review the change in evangelical feeling as reflected in the pages of this magazine. The November 8, 1968, issue of Christianity Today carried several articles on contraception and abortion. One leading biblical scholar wrote, “Clearly, then, in contrast to the mother, the fetus is not reckoned as a soul.” A theologian mentioned the ALI reform proposals favorably. The articles concluded with “A Protestant Affirmation,” the consensus of 25 evangelical scholars. On abortion, it read, “Whether or not the performance of an induced abortion is sinful we are not agreed, but about the necessity of it and permissibility for it under certain circumstances we are in accord.” The statement spoke of “a tragic moral choice” and endorsed the American College of Obstetricians and Gynecologists’ statement favoring therapeutic abortions for the life and health of the mother, in cases of rape, incest, or deformities.

By the next year, though, red flags had begun to fly. An editorial noted that under a new Maryland law numerous abortions were being approved on the basis of mental health. “No doubt most state abortion laws need revision,” the editorial stated.

Evangelist Francis Schaeffer, who had only recently become well known, was making an impact among evangelicals with his strong warnings against abortion. Harold O. J. Brown, who would soon write strong Christianity Today editorials against abortion, felt Schaeffer’s influence. So did a Bible college student named Randall Terry, who would become the leading spokesperson for Operation Rescue.

By 1971 there was no more talk in Christianity Today about therapeutic abortion. The direction reform was leading was clear. “Let it be no great surprise when America is subjected to severe judgment,” an editorial read. In the same year, however, the Southern Baptist Convention “urged Baptists to work for legislation permitting abortion under certain conditions. These include: rape, incest, deformity, emotional health.”

Roe v. Wade
Few anticipated the complete victory that Roe v. Wade gave to proabortionists in 1973. Though the Supreme Court claimed to offer no opinion about when human life began, it implicitly set the time at birth; and though the new law divided pregnancy into equal trimesters, allowing that the fetus might receive some protection in the last three months before birth, in practical terms—because it stipulated that abortions could be done at any time if the mother’s mental health was believed to be in danger—the Court assured that an abortion could be done up until the very moment of birth.

Christianity Today greeted Roe v. Wade with a firestorm of criticism. “Christians should accustom themselves to the thought that the American state no longer supports, in any meaningful sense, the laws of God.” That was a revolutionary thought to most evangelicals.

But CT was ahead of many evangelicals. In its news report on Roe v. Wade, it quoted prominent Southern Baptist pastor W. A. Criswell: “I have always felt that it was only after a child was born and had life separate from its mother that it became an individual person, and it has always, therefore, seemed to me that what is best for the mother and for the future should be allowed.” (He later repudiated this position.) It would be years before such a statement from an evangelical leader would be unthinkable. According to Brown, evangelicals simply could not imagine themselves lining up with Roman Catholics, nor could they imagine that the Supreme Court of their beloved nation (which they thought of as Protestant) would support a cause directly opposed to Christian values.

Few in the press seemed to understand how radical the justices’ decision had been. Time gave it two pages in the back of the magazine; Newsweek gave it one. An editorial in the Christian Century proclaimed that “this is a beautifully accurate balancing of individual vs. social rights. … It is a decision both proabortionists and antiabortionists can live with.”

Roe v. Wade demonstrates that fundamental moral conflicts should not be decided by fiat. The absolute polarization we currently experience is directly traceable to the Supreme Court’s decision to take abortion out of politics and declare it a settled question. Those who opposed abortion had suddenly no recourse except radical action. The discussion had been about where to draw the line among tragic choices; the justices erased the line completely and said there was no room for further discussion.

Antiabortionists may someday have reason to remember this lesson, if they gain the power to stop abortion by fiat. As we have seen, restricting abortion works best when it is based on a wider consensus about the value of life. The first centuries of the church gained this consensus through centuries of witness. They spoke passionately against abortion as a part of their faith; they also suffered for their faith. Ultimately, their faith triumphed, and legal changes followed.

By contrast, the nineteenth century, though it passed antiabortion laws, seems not to have built a strong, public consciousness of the humanity of a fetus.

Ethicist Stanley Hauerwas touches on this issue when he notes the frustration of antiabortionists who fail to convince their opponents that a fetus is a human being. He says that more than logic is needed. “Christian arguments about abortion … have not merely failed to convince: they have failed to suggest the kind of ‘reorientation’ necessary if we are to be the kind of people and society that make abortion unthinkable. … Even if [we succeed politically], our success may still be a form of failure if we ‘win’ without changing the presuppositions of the debate.”

That is what Christians in the first three centuries managed to do. They changed the world, not just the law.

This article originally appeared in the October 6, 1989 issue of Christianity Today.

Copyright © 2003 Christianity Today. Click for reprint information.

Associated Press - President Bush Nominates White House Counsel Harriet Miers to Supreme Court

October 3, 2005
By Deb Riechmann

WASHINGTON — President Bush on Monday nominated White House counsel Harriet Miers to replace retiring Justice Sandra Day O’Connor on the Supreme Court, reaching into his loyal inner circle for a pick that could reshape the nation’s judiciary for years to come.

“She has devoted her life to the rule of law and the cause of justice,” Bush said, announcing his choice from the Oval Office with Miers at his side. “She will be an outstanding addition to the Supreme Court of the United States.”

If confirmed by the Republican-controlled Senate, Miers, 60, would join Justice Ruth Bader Ginsburg as the second woman on the nation’s highest court and the third to serve there. Miers, who has never been a judge, was the first woman to serve as president of the Texas State Bar and the Dallas Bar Association.

Miers, who Bush called a trailblazer for women in the legal profession, said she was humbled by the nod.

“If confirmed, I recognize I will have a tremendous responsibility to keep our judicial system strong and to help insure the court meets their obligations to strictly apply the laws and Constitution,” she said.

Democratic and Republican special interests groups were braced for a political brawl over the pick, Bush’s second. But the lack of a judicial record may make it difficult for Democrats to find ground upon which to fight her nomination.

Senate Minority Leader Harry Reid, D-Nev., had urged the administration to consider Miers, two congressional officials said. There was a long list of staunchly conservative judges that Democrats were poised to fight, Miers not among them.

Bush, his approval rating falling in recent months, had been under intense pressure to nominate a woman or a minority.

Miers’ pick came shortly before Chief Justice John Roberts was set to take his seat on the court for the first time Monday after breezing to nomination. Miers helped push his nomination through the Senate.

“She will strictly interpret our Constitution and laws. She will not legislate from the bench,” Bush said. Conservatives apparently agreed.

“There’s every indication that she’s very similar to Judge Roberts _ judicial restraint, limited role of the court, basically a judicial conservative,” said Republican consultant Greg Mueller, who works for several conservative advocacy leaders.

The president offered the job to Miers Sunday night over dinner in the residence. He met with Miers on four occasions during the past couple weeks, officials said.