The Fundamental Abortion Question Isn’t What You Think

Aug 23, 2019 by David Fowler

pregnant woman wearing cranberry-colored dress
I have listened again to all the legal testimony presented to the Senate Judiciary Committee in connection with the overhauled version of the “heartbeat” bill. There is a sense in which the fundamental issue isn’t whether one believes in a “right to life” or in a “right to abortion.” That view of the matter is too small and too narrow.

The real issue our governor, legislators, and attorney general must answer is whether they still believe in the rule of law. That expression or the variation we often use—no one is above the law—is the real issue.

I will demonstrate why neither the pro-abortion nor pro-life attorneys opposed to the amended Senate bill really believe in the rule of law.

Testimony of Heather Shumaker, National Women’s Law Center

After Heather Shumaker, an attorney with the National Women’s Law Center and the mother of at least one child, gave her prepared remarks, Senator Janice Bowling asked her,
What I would ask you as you are talking about rights of the woman, when would you think that the unique individual . . . that grew in your womb . . . , that baby, had any rights?
Ms. Shumaker’s answer:
I’m here specifically to speak to the constitutionality of or lack thereof of this particular measure as well as the harms that I believe will be felt by the women of Tennessee should this bill pass. I don’t have a bright line point to answer your question.
Senator Kerry Roberts, probably dumbfounded by the inability of a lawyer to provide a “bright line” rule-of-law type answer to a constitutional question, said, “When you sat down, you said you were here to speak as a woman, too. So I believe you are free to answer [Senator Bowling’s] question if you choose.”

Her response, then, to Senator Bowling’s original question was,
Well, then, my answer to that question would be I think that is for the pregnant person to determine.
When Sen. Roberts said that as a lawyer she couldn’t just walk into a courtroom and say that every woman gets to decide when another human being has rights, Ms. Shumaker clarified that this was her personal opinion as a woman.

In other words, as a lawyer, she had no “bright line” to suggest to a court or legislative body as to when a human, natural person has any rights, and, as an individual, in the context of a pregnancy, she said the rights of the human being in her womb, distinct in every way from her, depended on her autonomous decision.1

That is what we call arbitrary law, and arbitrary law is the antithesis of the rule of law.

As mentioned last week, for the rule of law to exist with respect to human or civil law, then it must be based on an underlying law that contains these three elements:
  • Immutable—not one thing today and another thing tomorrow or next week or next year,
  • Uniform—can be applied in all legal/constitutional situations such as property, tort, criminal law, and regulatory law, and
  • Universal—not one thing in California and another in Tennessee or one thing in a courtroom and another in a legislative chamber.
Heather Shumaker has effectively testified that she does not believe in the rule of law.

But that also means that she can’t believe in any real legal rights. Real legal rights must be based on a law that is real, and her testimony shows that she doesn’t believe in any real law. She only believes in legal opinions.

Is There a Difference Between Ms. Shumaker and the Right to Life’s Attorneys?

No. That there is no real difference in the understanding of law between the pro-life opponents of the amended Senate bill and Ms. Shumaker is demonstrated by something told to me by a person in one of the overflow rooms where the hearing was being streamed over the internet.

This person said fifty percent of those in the room were dressed in black, supporting Planned Parenthood. When the pro-life testimony in favor of the amended bill concluded and Mr. Bopp, attorney for National Right to Life, got ready to speak, most of the crowd in black left.

Why would they do that? Because he was going to make the same legal or constitutional arguments as the lawyers on their pro-abortion side.

Do These Pro-Life Attorneys Believe in the Rule of Law?

Now, I would not want to say that the two pro-life attorneys who testified against the bill don’t verbally profess a belief in the rule of law. I’m sure they would. However, as is often the case, even as with me at times, there can be a disconnect between what we say we believe and what our actions show we really believe.

What the pro-life attorneys opposed to the bill believe in more than the rule of law is what former Supreme Court Justice Oliver Wendell Holmes said about law in his 1897 Harvard Law School essay, The Path of the Law:
The object of our study [of the law], then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts. . . . Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise. . . . If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.
In other words, following Darwin’s Origin of the Species in 1859 and the introduction into Harvard’s law school of an evolutionary worldview, there are no immutable, uniform, and universal foundations for law because there is no Being outside of us upon which such could be said to exist. That’s why the “new . . . legal thought” was simply to develop skills in predicting what the next evolution in the “law,” if any, might be.

Holmes’ “bad man” view of law is that all anyone really wants to know and all “the law” can really tell us is what the “instrumentality of the courts” is likely to do or not do to us if we do or do not do certain things. Whether the ruling is just or unjust, morally right or morally wrong according to “conscience” is irrelevant.

Thus, the only thing the Right to Life attorneys could or would talk about is U.S. Supreme Court opinions regarding its 14th Amendment jurisprudence and how hard it is to get five justices to agree with you. Any rule of law argument for protecting life based on the Ninth Amendment was merely “clever” in the words of National Right to Life’s attorney, apparently meaning it lacked any real legal substance.2

Want Proof?

When asked if he agreed with the legal arguments made by one of his friends in a law-review-quality article published last year in the Georgetown Journal of Law and Policy setting forth, according to its title, “A Hypothetical Opinion Reversing Roe v. Wade,” Paul Linton, counsel for National Right to Life’s state chapter, said, “I was generally favorable about what he wrote. . . . I like the approach he took. But I don’t think we have the votes now. . . .”3

Governor Lee and our legislators need to understand that the legal practice and opinions of these pro-life attorneys are based more on a Holmesian view of the law than the rule of law.

I don’t fault them for having this view of law, because that is what I was taught in law school, too, and it is what most law schools teach. It is easy not to see that this view of law makes U.S. Supreme Court justices “God” in place of the real God. But this view of law means the opinions of Supreme Court justices are to be feared throughout the land, not God’s judgments, as should be the case. (See Psalm 119:120.)

What, Then, Shall We Do?

As I said last week, a rule-of-law lawyer does not disregard the opinions of those before whom he or she will argue. But that lawyer knows that to argue with a fool according to his folly is to become like the fool, foolish (Proverbs 26:4). The rule-of-law lawyer also knows the better course is to answer the fool’s folly in the way it deserves to be answered (Proverbs 26:5).

In this context, I think those two verses mean this: Force the constitutional argument on life and abortion away from Holmesian folly, represented by the U.S. Supreme Court opinions embodying its 14th Amendment jurisprudential folly, to one based on the rule of law.

Why is that important? Because, as Ms. Shumaker makes clear, the pro-abortion lawyers have no answer to a rule of law question other than a completely arbitrary one. And the only way to make this question the focus of any lawsuit over the legislation is to frame the issue strictly in terms of the rule of law, nothing else.

They trust in Roe. It is their stronghold. It must be attacked.

Unfortunately, the pro-life lawyers opposed to the amended bill are afraid to attack it, to which I would reply, along with Solomon, “A wise man scales the city of the mighty, and brings down the trusted stronghold” (Proverbs 21:22, NKJV; see also Mark 3:27). And why might the wise man not be afraid to attack the stronghold? Doesn’t sound wise to the natural person. Sounds like sure defeat. For me, Solomon’s final words in Proverbs 21 give the answer, “Victory belongs” not to the slickest lawyers and those most able to predict what men will do, “but to the Lord.” After all, as Solomon said earlier, the wise are to “trust in the LORD with all [their] hearts, and lean not on [their] own understanding” (Proverbs 3:5, NKJV).
  1. If forced to discuss the “other rights” to which the Ninth Amendment refers and their founding in the common law, I suspect Ms. Shumaker will be hard pressed to give a response to what William Blackstone said about the absolute right to life in his Commentaries on the Laws of England: “This natural life, being, as was before observed, the immediate donation of the great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority.” It would be good for the pro-life attorneys opposed to the bill to consider the use of Blackstone’s view of life in its 1997 decision in Washington v. Glucksburg, rejecting the application of Planned Parenthood v. Casey’s “liberty right” concept to state laws prohibiting assisted suicide and, in particular, its footnote 10, “Sir William Blackstone['s]. . . Commentaries on the Laws of England not only provided a definitive summary of the common law but was also a primary legal authority for 18th and 19th century American lawyers . . . .” Abortion is worse than assisted suicide in that the physician is not helping take the life of the party wanting to die but rather taking the life of a third party based strictly on another party’s “own authority.” This is Ms. Shumaker’s view of things, and it is an arbitrary view of the person and of life.
  2. Mr. Bopp, attorney for National Right to Life, expressed his outright contempt for and skepticism about the applicability of common law to constitutional interpretation saying the “common law can’t trump the U.S. Constitution,” though I’m sure he’s familiar with the Glucksburg decision and many others in which the court has looked to common law and Blackstone in particular to interpret the U.S. Constitution.
  3. One of the most galling things about Mr. Linton’s testimony was his statement that in 1992, in the case of Planned Parenthood v. Casey, the U.S. Supreme Court “adhered” to the “central holding” from Roe “that the state may not prohibit abortion before viability. They haven’t backed away from that. We need to see some signs of [their] willingness to cut around the edges and back off, I think, before we have a frontal attack.” I don’t know how he could say that and legislators believe him. The day before I had provided them these words from Justice Ginsburg’s blistering dissent from the majority’s 2007 opinion in Gonzales v. Carhart, which upheld Congress’ ban on partial birth abortions:"Today, the Court blurs that line, maintaining that ‘[t]he Act [legitimately] appl[ies] both previability and postviability because . . . a fetus is a living organism while within the womb, whether or not it is viable outside the womb.’Though these statements in Gonzales have not been disavowed by the U.S. Supreme Court in any case since then, neither of the pro-life attorneys opposed to the bill discussed it relative to their Holmesian predictions for reasons that are beyond me. However, I do understand why the pro-abortion attorneys didn’t discuss it. It’s bad news if the viability standard is ever directly attacked.


The Arbitrariness and Lawlessness of Current Abortion Law Attorney

Against TN Heartbeat Bill Fails to Provide Logical Argument

TN Right to Life’s Paul Linton Responds to Sen. Roberts on SB 1236

Bopp Warns Supreme Court Not Ready to Overturn Roe
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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