Endnotes to Part 16: Death of a Child
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”.
Endnotes to Part 14: The Death of a Child
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.
Endnotes to Part 13: The Death of a Child
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.
Endnotes to Part 11: Death of a Child
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.
Endnotes to Part 10: Death of a Child
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.
Endnotes to Part 9: Death of a Child
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.
Endnotes to Part 6: Death of a Child
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.
Endnotes to Part 5: Death of a Child
21. Sometimes D&X is called “Intact Dilation and Evacuation, or “Intact D&E”
Endnotes Part 4: Death of a Child
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.
Endnotes Part 3: Death of a Child
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
Endnotes to Part 2: Death of a Child
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.