Thursday, March 31, 2016

Regulation Affirms Abortion By Implication

There are two parts - maybe two sections or clauses - to the Personhood anti-abortion strategy.

The first is simple, easily grasped, and is understood and supported by the vast majority of pro-life activists. I daresay it's grasped and will be supported by a majority of the general population, easily enough, if we're able to carry the message to them.

That part is a direct assertion that:
  • an unborn human child at any gestation is by definition an innocent human being

  • that killing that innocent human being must therefore be murder, especially in the absence of any "due process of law"

  • and that abortion must, by definition, be premeditated murder, and therefore must be illegal (or should be made so)
The second is a corrollary, and is therefore somewhat indirect, and is because of that somewhat more difficult to explain without a discussion. There are no soundbites to this corrollary.

And that corrollary is:
  • if abortion is murder - an abhorrent crime - then it cannot and must not be regulated, because you cannot regulate something that isn't legal.

Regulations Send the Wrong Message to the People and the Courts

In fact, we in the Personhood movement, have often argued, it is counterproductive for pro-life legislators to insert "anti-abortion regulations" into the law in an attempt to "regulate abortion to death." This is a difficult task, since these legislators are, almost without exception, well-meaning men and women who are trying to achieve a positive partial result in the absence of an immediate fully positive solution.

We are fighting 30 years of a driven habit, urged on by most other pro-life groups which have encouraged legislators to submit, push and pass dozens of anti-abortion regulations, thinking that it would at least mitigate the evil until that day when we can finally end abortion forever.

For my part, I've often argued that these anti-abortion regulations may become the reason why we'll never be able to abolish abortion forever, because:
  • they normalize and regularize abortion in the public mind,

  • they convince the public that abortion can become a well-regulated (and therefore more acceptable) industry,

  • they bring government and the public into partnership with the abortion industry,

  • they imply that abortion must be legal, because you cannot regulate something that is not legal.
In an attempt to make that point, I've sometimes mentioned that municipalities do not have a law that says "you may drive a car up to X speed." Instead they have a law that says "you may not exceed X speed." The fact that you can drive under that speed is implied by the regulations.

But I've recently realized the most obvious example of my assertion is an obvious point of law, illustrated by a well-known court case.

The Dred Scott Decision

The US Constitution never said slavery should be legally allowed.

The US Constitution mentions slavery, obliquely, in only two places:
  1. It says unfree persons should be counted as 3/5 of a person for purposes of representation and taxes (i.e. the "Three Fifths Compromise").

  2. It says Congress may regulate the slave trade, but may not prohibit it before 1808.
Let me reiterate that: The US Constitution at no time says slavery is legal!

Nevertheless, in 1857, the US Supreme Court examined the relevant laws, the Constitution and the institution of slavery in the infamous Dred Scott case.

They concluded, on the basis of two mere references to slavery in the Constitution, that the institution of slavery was a Constitutionally-protected right!

As I have often said, we believe merely mentioning abortion in law, except to explicitly and completely prohibity it, will backfire and give reason to courts and judges to rule that abortion must be legal by the very fact that the law sets limits upon it and regulations as to how it must be performed.

Dr. Charles Rice, late Professor Emeritus at the Notre Dame Law School, has argued this more ably and effectively, in a series of articles over the course of his life (he passed away in 2015). He believed such "anti-abortion regulations" would create a foundation in law for the legality of abortion.

And here, in the Dred Scott decision, we have proof that courts will take the flimsiest of implications to rule in favor of what they believe should be the law.

But, in reality, it's not that flimsy of an argument. It's completely logical, as we've said, that you cannot regulate something that is not legal, and therefore something that is regulated must be legal.

Please Do Not Regulate the Evil of Abortion

We, in the pro-life movement, must be careful not to overstep that line. We should not be inserting "anti-abortion regulations" into the law for a great many reasons. They, in fact, will perpetuate the existence of abortion, just as anti-slavery regulations in the 1800s perpetuated slavery.

We, in the Personhood movement, ask all pro-lifers to recognize the futility of anti-abortion regulations and support Personhood. Support ONLY Personhood.

Thank you!

Ed Hanks

Note: I'm using the term "anti-abortion regulations" too broadly, merely for effect. We in the Personhood movement believe there are such things as "principled regulations" that cause a positive, pro-life effect upon the law, but do not at the same time impugn the humanity of the unborn child. These laws do not mention abortion and are fully compatible with the interpretation of an unborn child as a human being. An example of a principled fetal homicide measure (here) has been submitted several times in Colorado, and once got far enough in the process to receive the vote of every Republican legislator in the Colorado House. Planned Parenthood regularly opposes this language, and browbeats every Democrat into voting against it, because they believe the unborn child must be considered as worthless under the law through 9 months of pregnancy, up until (and sometimes after) birth.