Abortion Hasn't Been 'Constitutionally Protected' for 18 Years!
By Dave Leach The Covenant News ~ December 17, 2009
Second in a series of excerpts from the pro se brief being submitted by Scott Roeder to answer how the Necessity Defense justifies his shooting of Wichita’s late term abortionist, George Tiller, May 31. His trial is scheduled for January 11. Slight changes are made to make the excerpt more readable to non-lawyers. Technical citations are simplified or omitted. Future installments will include: Federal Law Caused Roe’s “collapse” in 2005 <> The Theory that Stopping Kansas Abortions can’t be Justified because Abortion is Legal Originated in a Grammatical Misunderstanding in 1993 <> Not Even Roe Says Whether Abortion is Genocide is “Irrelevant” <> Preamble Constitutionally Protects “Our Posterity”, Making Roe Unlawful from its Inception <> Imminence and Alternatives <> Due Process Denied, when the Only Contested Issue of a Jury Trial is Hidden from the Jury
The view that Abortion is constitutionally protected may have seemed true in 1993. That’s when the Kansas Supreme Court said so in a case quoted by Scott Roeder’s prosecutor, called City of Wichita v. Tilson.
But a Supreme Court justice explained in 2003 how that ceased being true in 1992.
The justice: Scalia. The case: Lawrence v. Texas. Scalia explained how the Supreme Court, in Planned Parenthood v. Casey, 1992, abandoned Roe’s position that abortion is a “fundamental right”. (When a court says something is a “fundamental right”, that is a court’s way of saying it is “constitutionally protected”.)
Scalia proves the right of a woman to choose to hire someone to kill her unborn child stopped being “constitutionally protected” in two ways. First, he pointed out that Casey did not once describe abortion as a “fundamental right”.
Second, Scalia pointed out that Casey said states did not need to “narrowly tailor” their abortion laws “to serve a compelling state interest”. In courtroom thinking, states can get out of all that “narrow tailoring” only after abortion is no longer “constitutionally protected”.
(You don’t need to understand these strange words to understand the rest of this article, but in case you are curious, here’s what they mean: let’s take the example of freedom of religion, colliding with a religion that worships by taking drugs. In a 1990 case, Employment Division v. Smith, a court said peyote use can be outlawed even if it is a religious ritual. However, the Constitution protects belief in the ritual. But because religion is a “fundamental right”, any law limiting such worship must “serve the compelling state interest” of controlling illegal drugs, and the law must be “narrowly tailored” to serve that state interest in the way that “least restricts” religious practices. Courts call this the “strict scrutiny” test.)
Here is the way Scalia explained it in 2003: “We have since rejected Roe' s holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, see Planned Parenthood v. Casey, ....and thus, by logical implication, Roe' s holding that the right to abort an unborn child is a ‘fundamental right.’ .... (not once describing abortion as a ‘fundamental right’ or a ‘fundamental liberty interest’).”
This reasoning withdraws “Constitutional protection” from abortion at any stage of gestation.
Even before this Supreme Court retreat from “constitutionally protecting” abortion, two appellate courts noticed that Roe v. Wade never “constitutionally protected” abortions on babies after “viability”. (“Viability” is when a baby can usually survive outside the womb. George Tiller made a name for himself on the corpses of babies he killed after they could have survived outside the womb.) Two other courts said the same thing after 1992, apparently not noticing the issue was moot since constitutional protection had been withdrawn from all abortions.
The four courts didn’t directly say “Roe never constitutionally protected abortion after viability.” They said it indirectly, something like this: “The fetuses saved by these fanatical prolifers weren’t viable. Therefore, abortions on them were constitutionally protected.”
A 1993 Illinois court said “The abortions performed at Concord West were confined to the period up to 12 weeks gestation. No evidence was presented that the fetus is viable at this point. Thus, the abortions performed at Concord West were constitutionally protected.”
A 1988 Pennsylvania court said “defendants should have been permitted to adduce evidence of viability.” A 1997 Mississippi case said the same thing.
The Kansas Tilson case mentioned the Pennsylvania case. It says “the defendants were convicted of criminal trespass. They alleged that the crimes were justified to prevent the loss of a human life. The court held that the necessity defense was unavailable because a woman's right to obtain an abortion was protected by the United States Constitution. The court stated: ‘As we have noted, pre-viability abortion is lawful by virtue of state statute and federal constitutional law. The United States Supreme Court, from Roe through its progeny, has consistently held that the state's interest in protecting fetal life does not become compelling, and cannot infringe on a woman's right to choose abortion, until the fetus is viable.’ .... Appellants do not suggest that viability and conception are simultaneous occurrences. We find that a legally sanctioned activity cannot be termed a public disaster."
A fourth court, in a 1988 New York City case, People v. Archer, said Roe had rendered any abortion that occurred in the first trimester a fundamental constitutional right. However, “the question is by no means free from doubt.” But if indeed abortion is a “fundamental constitutional right”, the Court reasoned, a first trimester abortion could not constitute a harm, much less “murder” as the defendants believe. However, the judge said he was willing to allow the jury to hear about the Necessity Defense if the defendants were able to show that the abortion office “was about to perform other than first trimester abortions on” the date of their “protest”.
The judge talked about the post-viability babies – the older babies, killed by late term abortions such as George Tiller was known for. He said the New York legislature had made their abortions “justifiable”, though otherwise they would be criminal acts. But “abortion can still constitute a moral ‘injury to be avoided’, under § 35.05 of the Penal Law, the judge said, because citizens of ordinary intelligence and morality remain free both as individuals and as jurors, to find it so.
The prosecutor had argued that allowing the rescuers to explain the Necessity Defense to the jury would be a state’s interference with abortion. (What an admission that the prosecutor expected the jury to acquit if the jury were entrusted with the facts!) But the judge answered that the prosecutor had even more discretion than the judge, to give the defendants their rights: the prosecutor had discretion not to prosecute the rescuers at all! Therefore it is absurd to accuse any court of interfering with any “constitutional right” just because it follows Due Process in trying defendants accused of interfering with it.
Another court accepted the prosecutor’s accusation that if the court allowed the defendants to present their defense to the jury, that would be state interference with the constitutional right to abortion. (State v. Clowes, 1990, Oregon.) The court actually said that the defendants met all the legal requirements for being allowed the defense, but giving the defendants Due Process “would be inconsistent with Roe v. Wade”!
Here’s how they said it: “trial court found that defendants had proffered sufficient evidence on all the elements of the choice of evils defense, generally, to submit it to the jury. Nevertheless, the trial court granted the state's motion to exclude evidence of the defense on the ground that to admit such evidence would be inconsistent with Roe v. Wade, 410 U.S. 113.”
Depriving a defendant of a constitutional right to present a defense that the court has ruled is available to him as a matter of law, in deference to a purely speculative concern about a possible passive or implicit interference with some unknown person’s conflicting constitutional right, cannot be a correct course of action for any court.
Conclusion: It is clear that no abortion has enjoyed Constitutional Protection, in the view of the U.S. Supreme Court, since 1992.
It is even more clear that post-viability abortions have no Constitutional protection in the view of any court.