Last week, on December 7, 2016, the Ohio legislature, in ten hours, amended a child abuse bill that had been working its way through the legislature, and added language that would prohibit abortions if a fetal heartbeat could be detected. Effectively, according to the press on this bill, abortions would be prohibited by this legislation at around 6 weeks gestation of the preborn baby. This made news across America. We’d like to provide the backstory, compare the heartbeat bill to the Idaho initiative petition, and give the reason why the initiative petition would be successful, whereas the Ohio heartbeat bill will not. We will conclude by even explaining how the typical pro-life bill that regulates abortion helps to set back the abolition of abortion altogether
The heartbeat bill was not a new idea. There have been attempts in Ohio to regulate abortions based on the detection of fetal heartbeats since 2011. It is reported that this legislation was amended to the bipartisan child abuse bill at the last minute because there is a hope that now that Donald Trump, an alleged pro-life President-elect, will have the ability to appoint “pro-life” US Supreme Court justices, that he can reshape the court to uphold something like a heartbeat bill by the time it makes its way to the court for judicial review. This hope is a key point we want to examine.
Do Republicans have a better track record on abortion than Democrats? Looking back in recent history, 13 of the last 17 US Supreme Court justices have been appointed by Republican Presidents. At the time that Roe v. Wade decision by the Supreme Court (the case that imposed legal abortion on all states), 6 of the 9 justices were Republican appointees. Of those, 5 joined the majority decision and discovered a right to abortion in the US Constitution’s 14th amendment. The remaining Republican appointee, William Rehnquist, appointed by Richard Nixon, dissented, and he was joined by a Democratic appointee, Byron White, who had been appointed to the bench by John F. Kennedy.
Then, in 1992, another major case came before the Supreme Court regarding the states’ attempts to regulate abortion. It was the case of Planned Parenthood of SE Pennsylvania v. Casey (PP. v. Casey). The case involved Planned Parenthood of Southeastern Pennsylvania as the plaintiff seeking to strike down the Pennsylvania Abortion Control Act, which entailed a 24-hour waiting period prior to an abortion, informed consent (doctors must notify the woman of health risks from having an abortion), spousal notification (woman must inform husband of decision to have an abortion), and parental consent (a minor must have parental consent to have an abortion). It was widely believed that the Court would not only have to consider this particular case, but also make a decision on either upholding or overturning Roe v. Wade. When the case reached the Supreme Court, some of the Roe justices had retired, and there were 8 Republican appointed justices out of the total of 9 justices on the Supreme Court. In fact, the remaining Democratic appointee was Byron White, who had dissented in the Roe v. Wade case. Rehnquist could be counted on as an original dissenter in Roe v. Wade as well. Blackmun was the only other Republican appointee from the Roe era, and he had voted for Roe. That left 6 relatively new Republican appointees – John Paul Stevens (Gerald Ford), Sandra Day O’Connor (Ronald Reagan), Antonin Scalia (Reagan), Anthony Kennedy (Reagan), David Souter (George H. W. Bush), and Clarence Thomas (Bush).
These Republican Presidents, Ford, Reagan and Bush were alleged to have been “pro-life” Presidents. The operating theory went that their appointments would be conservatives who would oppose the liberal abortion agenda, and PP v. Casey was the perfect opportunity to re-examine Roe v. Wade with 5 justices, a majority alone, appointed by Reagan and Bush. Unfortunately, Reagan-Bush Justices Kennedy, Souter and O’Connor helped form a plurality that upheld Roe v. Wade under the Due Process Clause of the Fourteenth Amendment, claiming the precedent of Eisenstadt v. Baird. They did decide in favor of the 24-hour waiting period, informed consent, and parental consent under the Pennsylvania Abortion Control Act. The other six Justices wrote or joined opinions, partly concurring and partly dissenting from the plurality. Rehnquist, Scalia, White and Thomas dissented from the upholding of Roe. Blackmun and Stevens concurred with the upholding of Roe. Worse though was that the court elevated the bar of the Roe decision and held that states could not place any “undue burden” or substantial obstacle before a woman who wants to abort her child.
Since 1992, things have deteriorated on the high court. Rehnquist has passed away, Scalia has died, and as of today we know of only one justice on the US Supreme Court who believes that Roe v. Wade was wrongly decided, and that is Clarence Thomas. In 2007, in a Supreme Court decision in the case of Gonzales v. Carhart, a decision upholding Congress’ 2003 Partial-Birth Abortion Ban Act, the court ruled 5-4 in favor of the ban. While Clarence Thomas voted with the majority, he also wrote a very short concurring opinion that said “I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) . I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973) , has no basis in the Constitution.” Thomas was joined in his opinion by Scalia. He was notably NOT joined by two George W. Bush appointees, chief justice John Roberts and Samuel Alito, who were both on the court at the time and in the majority for the opinion. They could easily have added their names to the Thomas concurrence, except that they probably do not agree with Thomas.
In fact, when John Roberts was confirmed to the bench, he testified before Congress that he believed the Roe v. Wade decision was established law. He said “Well, beyond that. It’s settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.”
We could continue to argue that hope placed in Republican appointed Supreme Court justices is misplaced. We have had lawyers argue that now that Trump is the President-elect, that he has pledged to support only nominees to the court that meet the recommendations of the Heritage Foundation as legitimate pro-life justices. Yet, let’s remember that Trump is not bound to any pledges he made as a candidate. It should also be remembered that his official position as a candidate was that abortion should be legal if a woman was raped, had been in an incestuous relationship, or if her health would be in danger. With those positions, exactly like the position of George W. Bush, Trump is technically pro-choice, not pro-life. We reiterate that it is never right to kill a baby for the crimes of the father, and that it is never necessary to intentionally kill a baby to save the life of the mother. The proper course when a woman’s life is in danger is to treat both mother and baby as patients and attempt to save both. May we also suggest that the Heritage Foundation is not infallible when it comes to suggesting judges who would with certainty deny there is a right in the Constitution for a mother to kill her baby. It is also necessary to point out that many a time a judge that appeared to be pro-life at their higher court appointment later became a justice on a higher court and turned out to not appear to believe that abortion was against the Constitution.
Let’s return to the Ohio heartbeat bill. It is not the first heartbeat bill among the states. In fact, in 2013 both Arkansas and North Dakota passed similar bills. North Dakota’s was identical in that it banned abortions at 6 weeks gestation. In both Arkansas and North Dakota, their new statutes were enjoined from enforcement by federal judges at federal district courts. Both of the judges that considered the North Dakota and Arkansas laws were Republican appointees, and both said that the laws violated PP v. Casey and Roe v. Wade. Then, when the states of Arkansas and North Dakota appealed to the 8th circuit federal court of appeals, a 3 judge panel of the 8th circuit, ALL Republican appointees, affirmed the unconstitutionality of the heartbeat bills based on, you guessed it, Roe v. Wade and PP v. Casey. Finally, in 2015 an appeal to the US Supreme Court by the states for review of the 8th Circuit opinion was denied by the US Supreme Court. The heartbeat bills laws of Arkansas and North Dakota dead ended at the doors of the US Supreme Court. The federal district courts and the appeals court showed us that there is too much reverence among lawyers, both Republican and Democrat appointees, for stare decisis, or court precedent. There is not nearly enough reverence for the actual protections afforded to the people by the US Constitution and the state constitutions. There is equally no reverence for the laws of God.
The real problem is that pro-life legislative attempts are not abortion abolition. We live in a strange world wherein 34 Idaho babies are legally murdered every week, and our only attempts by the Idaho legislature recently have been to publish a list wherein mothers may know where to get a free ultrasound before they murder their baby. If rape were legal, would we expect our legislature and governor to pass bills that required rapists to use condoms when they raped their victims? Yet that is exactly what the sum total of pro-life legislation has done over 44 years – meet these conditions, and then you may murder your baby. The problem with pro-life efforts is they seek to work within the confines of unjust Supreme Court rulings. We propose that a just governor and legislature, when seeking to save the lives of Idaho children against unjust rulings of federal and state courts, start from the premise that those courts need to be defied or ignored.
We’d like to revisit our premise that the typical pro-life legislation helps to set back the abolition of abortion. The reason why has to do with politics and bad training. First, if you give politicians low hanging fruit, something easy that they can do versus something harder, then they will take the easy course every time. Politicians are not known risk takers. And, in fact, they only want to please their constituents and attempt to serve their constituents’ interests. If the constituents are satisfied that the politician has made pro-life statements and has voted for the latest pro-life abortion regulation, then why would the politician go beyond satisfying that low bar the constituents have set? To do so will draw the fire of the pro-abortion crowd, and will expose them to the possibility of not being re-elected for being seen as an extremist.
Let’s now address the idea of bad training. Each attempt at abortion regulation informs the culture and helps set their expectations. We have literally been told in the culture that babies should not be killed if they feel pain. Where did the culture get that idea? From the pro-life politicians when those politicians argued for and passed the Pain Capable Unborn Child Protection Act. Unfortunately, a lot of our culture derives their morality from the state’s laws. So, when the state says merely that babies should not be killed because they can feel pain, then the culture may decide that pain capability makes human life of value. Or, maybe they will instead decide that if you give the baby a pain killer, then you can dismember the baby. These regulations set back abolition, because when you come back later and try to reset the bar to a more stringent standard, like a fetal heartbeat, the culture has to try to determine why that standard is better than your previous pain standard. And, they may not buy your argument. In the meantime, as you slowly try to reset the bar (and continually get smacked down by the courts), 34 Idaho babies die every week because you have not established justice on their behalf. Before you know it, 44 or 45 years have passed of this game, and you’ve got 80,000 dead Idaho babies.
Finally, every dollar, every speech, every minute and every effort spent on regulating abortion instead of abolishing it has only allowed abortion to become more fully entrenched in the courts, in the culture and in the statutes. By now, the majority of the American population has lived their entire lives in an era of legal abortion. Would we compromise with the lives of 5 year olds in the same manner we have compromised with the lives of the preborn? Would we attempt to enact incremental protections for the born over the course of 45 years while the born continued to be legally slaughtered at the rate of 34 a week in our state, the slaughter being legal in statute and being protected by law enforcement? Would we bow down to a court’s opinion that it was a Constitutionally protected right for mothers to pay someone to dismember their 10 year olds? If the answer is no, then that clearly demonstrates that we simply do not believe that the lives of the preborn have the same value as the lives of the born, because we have failed them in every way that these questions direct. This discrimination against the preborn can be called “ageism”.
Right now, there is no equal protection under the law for preborn human beings in Idaho, and as we wait decade after decade to find friends on the Supreme Court, we allow the murder of 1,750 Idaho babies every year. We should not allow one more week to go by while abiding by these unjust judicial opinions. Courts do not make laws – they render opinions. And their opinions are not valid if those opinions are an egregious violation of the protections afforded to the people by the 5th, 9th, 10th and 14th amendments to the US Constitution and by Article I, Section 1 of the Idaho Constitution. Our legislature and governor have a moral, constitutional and legal responsibility to protect all human life. The state of the emergency for the preborn suggests the right course of action is to defy the courts that are contrary to the equal protection of all human life.
Our Idaho initiative petition starts from the premise that the courts need to be ignored and defied. Unfortunately, legal abortion now is not just a matter of unjust court opinion. Because of the state of Idaho’s capitulation to unjust courts, we now have two whole chapters of Idaho code that represent the sum total of decades of abortion regulation. These are the title 18, chapters 5 and 6 that our initiative will repeal (in fact, chapter 5 is not even being enforced presently because of a federal court ruling against it, of course). In our aggravated battery criminal law, we have written in an exception to aggravated battery that allows mothers and abortionists to commit aggravated battery legally against the preborn child while they are in the process of killing the preborn child. So, we amend that code to get rid of the exception for them to commit that crime. Then, we repeal the section 18-4016 of our murder laws that allow mothers and abortionists to kill preborn children.
The difference between legislation that would abolish abortion versus pro-life legislation is that the abolitionist legislation does not attempt to regulate murder. Rather, it prohibits murder altogether.