The Elephant in the (Abortion Hearing) Room

Aug 16, 2019 by David Fowler

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

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

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

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

The Difference Between the Rule of Law and Judicial Politics


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

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

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

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

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

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

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


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


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


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

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


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


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

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

Furthermore, judicial vote prognostications have proved unreliable anyway.

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

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

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

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

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

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

Judicial Politics Playing Out in Tennessee

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

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

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

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

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

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

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

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

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

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

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

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


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David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.

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