Human Law at the American Bar Association
by
Edward Haskins Jacobs
The July 5, 2001 Wanderer [a lay Roman Catholic newspaper
published out of St. Paul, Minnesota] included an article about my intention
to present to the American Bar Association (the ABA) House of Delegates
in early August 2001 a proposal to add "to defend the right to
life of all innocent human beings, including those conceived but not
yet born" to the purposes section of the ABA constitution. This
is the story of that presentation, with comments.
I was called to the podium in the grand ballroom of
the Hyatt Hotel just off the "miracle mile" of Michigan Avenue
in Chicago at 4 p.m. on Tuesday, August 7th. A dais along one wall was
punctuated by the podium of the Chair. In front of the Chair’s podium
was a floor-level podium for speakers from the well of the House of
Delegates.
From the speakers’ podium, I looked out at a sea of
over 300 delegates. (There are 532 or so who hold office as delegates.)
The delegates could either look at me - I appeared to be directly viewable
by everyone - or they could look at one of two or three large movie
screens and watch a simultaneous video of me at the podium. I am not
a member of the House, but the ABA allows any member of the organization
to propose amendments to the ABA constitution or bylaws; and to address
the ABA’s House of Delegates at its annual meeting, provided the proposal
receives a second from the floor. Once I was called to the podium and
the chair announced the agenda item and called for a second, someone
in the front of the well of the House (I think maybe one of the two
speakers against me) seconded the proposal, and I was allowed to proceed.
I was allotted 10 minutes and finished in maybe 8 or
9. I reiterated a few of the salient points in my written report to
the House of Delegates, which was in the hands of all delegates, as
they sat at their long tables in front of me. Basically, I pointed out
the obvious: that human life begins at conception; the conceived child
in the womb has his or her own DNA and is not simply part of his or
her mother; our Declaration of Independence recognizes the right to
life (by implication, of the innocent human being) as the most fundamental
of human rights, along with the right to liberty and the pursuit of
happiness; the inalienable right to life is granted to us by our Creator,
and it is an error to regard the Constitution of the United States instead
of our Creator as the fundamental source of human rights within the
United States; it is further a mistake to regard the United States Constitution
as a stand-alone "social contract," completely malleable by
the society, without the need to answer to our Creator; and the ABA,
which purports to be the voice of the American legal profession, and
an advocate for justice and for the powerless, needs to sit up and defend
the right to life of all innocent human beings.
Although mine was one of only two proposals to amend
the ABA constitution (the other seeking a representative in the House
of Delegates from the Native American Bar Association), it was one of
fifty-some proposals before the delegates - to amend the constitution,
to amend the by-laws, to amend ABA-crafted model ethical rules for the
practice of law; or to adopt official ABA policy positions. The proposals
to amend ethical rules for lawyers were the meeting’s only substantive
issues that made it into the secular press.
About 400,000 of the 900,000-plus lawyers in the United
States belong to the ABA, which was founded in 1878, and which claims
to strive to be "the national representative of the legal profession,
serving the public and the profession by promoting justice, professional
excellence and respect for the law." The ABA further claims to
seek "to advance the rule of law in the world."
Most of the proposals at the meeting were to adopt standing
ABA policy positions. The ABA Policy and Procedures Handbook lists hundreds
of standing policies adopted by the ABA over the years, although action
was taken at the recent meeting to "archive" most policies
over ten years old. Way back in 1978, the ABA adopted a policy, still
in the Handbook, supporting federal and state legislation to "finance
abortion services for indigent women." In 1991, the ABA adopted
a policy supporting legislation to promote "full counseling and
referrals on all medical options" in federally funded family planning
clinics. In 1992, the ABA adopted a policy opposing federal legislation
restricting abortions prior to viability and thereafter if the abortion
is "necessary to protect the life or health of the woman ... ."
And in 1994, the ABA adopted a policy recommending that the United States,
at the Fourth World Conference on Women in Bejing, China, in 1995, "actively
support the inclusion in the Platform for Action of Effective measures
to accelerate the removal of the remaining obstacles to the realization
of women’s basic rights."
In the morning session on August 7th, the same day my
proposal was made, the ABA House of Delegates adopted a policy opposing
President Reagan’s Mexico City Policy, which had been voided by President
Clinton as one of his first official acts as president, and which was
restored by President George W. Bush as one of his first official acts
as president. The new ABA policy "opposes any federal law, regulation
or policy that prohibits foreign nongovernmental organizations that
receive United States government assistance from using non-U.S. government
funds to provide health or medical services that are legal in the country
receiving the United States’ assistance." The Mexico City Policy
prohibits federal funding of such organizations if they are involved
in counseling that suggests abortion is an available option for the
mother, or if they are involved in providing abortions.
So, anyway, back to the podium. After my little presentation,
Barbara Howard from the Standing Committee on Constitution and Bylaws
was called upon to give that Committee’s recommendation on my proposal.
She stood up and said the pro-life amendment is "out of order"
because it is inconsistent with the first purpose of the ABA constitution,
which is to "uphold and defend the Constitution of the United States
and maintain representative government." The Committee had submitted
a one or two sentence written report to the House saying exactly that.
I knew from an earlier telephone conference with the Committee that
they were going to take that position, and my written report to the
House Delegates debunks this idea.
Briefly, my argument against the Committee’s position
pointed out that the United States Constitution does not directly by
its words prohibit the States from protecting the right to life of all
innocent human beings within their respective jurisdictions. Of course,
the Constitution does not come within 10 miles of saying this. Roe v.
Wade and its progeny (More than 20 United States Supreme Court abortion
decisions have come down since Roe v. Wade in 1973.) do, however. But
Roe v. Wade and its children cannot rightfully be regarded as equivalent
to the Constitution, but rather they are a perversion of it. Even if
one accepts the penumbra theory of privacy rights the Supreme Court
has grafted onto the Constitution (starting with Griswold v. Connecticut
in 1965, that declared unconstitutional a Connecticut statute that outlawed
the use of artificial contraceptives), there is an inescapable problem
with the rationale for Roe v. Wade. The Supreme Court says that the
embryo and the fetus do not constitute new human life, but represent,
at least prior to viability (capacity for sustained survival outside
the womb), merely potential human life. But the zygote, embryo, and
fetus do constitute new human life with their own set of DNA. Thus the
Supreme Court wrongly stacked the deck against the child in the womb,
comparing the woes of unwanted motherhood with the strawman of the mere
potentiality of human life. Through misplaced compassion the Court said
the mother must be permitted to do what she wanted with this mere blob
of potentiality.
Back to the meeting: Two delegates had signed up with
the Chair to comment upon the proposal. The first called to the podium
identified himself as Bill Robinson [William T. Robinson III] from Kentucky.
He said that "on the substance of the issue" he personally
agrees with "the speaker," but the subject of the proposal
is too personal and that he opposes it for that reason. The next was
Walter White, Jr., an American lawyer who practices law in London, a
delegate from the ABA Section on Individual Rights and Responsibilities.
He presented earlier in the day the anti-Mexico City Policy proposal.
Mr. White said it was the first time he has seen a resolution before
the House of Delegates without the support of any ABA section, standing
committee or special committee; or any state, local bar association,
or other representative body to the House of Delegates. He said the
proposal would change fundamental ABA policy, and the effects it would
have would need to be studied. He then moved to postpone action on the
proposal indefinitely. By voice vote with no vocal opposition the question
was called. The delegates voted on the motion electronically through
hand-held voting devices and the results were displayed on the big movie
screens. The motion carried 209 to 39. I would guess that at least 50,
and maybe 100 delegates present did not vote.
Curiously, at the same meeting of the House of Delegates,
a policy proposal by the ABA Section of Intellectual Property Law to
oppose the adoption of any patent law interpretation that allows a genetically
engineered human being to be owned, was withdrawn. For what reason,
I do not know since I was not present at most of the meeting, not being
a member of the House of Delegates.
Given the pro-abortion history of the ABA House of Delegates,
why did I present this proposal that the ABA reverse course and become
pro-life? Was it an obvious loser and a waste, and counterproductive?
The ABA purports to speak for the lawyers of the United States and it
contends that its interest is in promoting justice and the rule of law.
I understand that many members of the ABA cut up their membership cards
and turned them in when the ABA first started adopting pro-abortion
policies. I expect that many other lawyers have chosen not to join for
the same reason. I think resignation and refusal to join are legitimate
and honorable responses to the fundamental wrongs of this purely voluntary
organization.
On the other hand, the ABA is a powerful voice in federal
government circles and in "the public square" (a nod to Father
Richard John Neuhaus) in general on many issues of national and international
importance. Also, the ABA claims to speak for American lawyers. So I
think it is legitimate for some pro-life attorneys to choose to remain
members of the ABA and to pull the strings of conscience from within
the organization. I knew, absent a miracle, my proposal that the ABA
change course and start defending all innocent human life was likely
to go over like a lead balloon. But I think we must keep raising the
issue again and again, including and especially before groups such as
the ABA.
There are, of course, outstanding lawyers doing wonderful
pro-life work. Most of them, I suppose, do not belong to the ABA. But
whether or not members of the ABA, lawyers will continue to play a vital
role in combating our culture of death. Perhaps as more and more mothers
get breast cancer from killing their children while in the womb, and
as more and more baby-killing mothers find themselves with long-term
guilt and depression, more lawyers will be induced to sue abortionists
and abortion mill operators such as Planned Parenthood for their failure
to fully inform the mothers who come to them, about what they are doing
(killing the mother’s child) and what were the risks involved - physical,
emotional, and spiritual - to the mother and to the mother’s child.
Just such a "failure to inform" theory of liability is a linchpin
of many lawsuits, and not just in the medical malpractice area. The
abortion industry is particularly susceptible to these claims since
its keystone is lies about being in the business of legitimate personal
freedom not the business of killing children, and lies about the real
nature and effects of their actions. No doubt these kinds of failure-to-inform
claims are already being made.
The Coalition on Abortion/Breast Cancer reports that
on August 16, 2001, three California women filed a lawsuit against Planned
Parenthood Federation of America and its affiliate, Planned Parenthood
of San Diego and Riverside Counties, seeking not monetary damages, but
rather a ruling that the defendants must in the future "provide
women with accurate information about the overwhelming evidence that
abortion raises breast cancer risk." The plaintiffs are represented
by the Thomas More Law Center of Ann Arbor, Michigan. Karen Malec, the
president of the Coalition, reports that Attorney John Kindley, who
wrote an influential article published in the Wisconsin Law Review in
1998 about informed consent and the abortion/breast cancer link, has
filed suit in Pennsylvania on behalf of a 20–year old woman against
a New Jersey abortionist for his failure to warn about the abortion/breast
cancer research and failure to warn about the emotional ramifications
of abortion. Attorney Kinsley is scheduled to go to trial on Sept. 11th
against a Fargo, North Dakota, abortionist who distributes pamphlets
denying there is evidence of the abortion/breast cancer link. Obviously,
we should pray for the success of these efforts.
It has been said that as human beings we are condemned,
or blest, to worship. Whether we realize it or not, most of us will
tend to worship someone or something. The only right choice is to worship
God Almighty - and what a blessing it is. But if we do not worship God,
we will probably wittingly or unwittingly worship an idol or idols in
His stead. When the United States was born, belief in God was still
the expected norm of statesmen, and the signers of the Declaration of
Independence could unabashedly proclaim that the fundamental human rights
of life, liberty, and the pursuit of happiness were both inalienable
and endowed on men by their Creator.
How did the Founders know that the innocent human being
has the right to life? Apart from Revelation, they knew it from the
natural law written upon the heart and soul of man by the Creator -
the light of understanding of good and evil placed in us by God. This
is the natural moral law discussed in the Catechism of the Catholic
Church; it represents man’s natural awareness of the eternal law of
God, and is discoverable, however dimly at times, through the use of
reason and the informed conscience (with the help of grace and Revelation).
This is where we get our natural sense of right and wrong. Human law
and the rule of the King, to be just, must not contradict this natural
moral law.
St. Thomas Aquinas puts it this way: "Human law
has the nature of law in so far as it partakes of right reason; and
it is clear that, in this respect, it is derived from the eternal law.
But in so far as it deviates from reason, it is called an unjust law,
and has the nature, not of law but of violence. Nevertheless even an
unjust law, in so far as it retains some appearance of law, though being
framed by one who is in power, is derived from the eternal law; since
all power is from the Lord God, according to Romans 13:1." ( Summa
Theologica, I-II, 93, 3, per Peter Kreeft, Summa of the Summa [San Francisco:
Ignatius Press 1990], p. 511)
Not all violations of the natural moral law must be
subject to penalties under our constitutions, and civil and criminal
laws. But our human law must not contradict the natural moral law -
otherwise it has the nature not of law, but of violence. But which violations
of the natural law should be proscribed by human law? St. Thomas Aquinas
tells us: "Now human law is framed for a number of human beings,
the majority of whom are not perfect in virtue. Wherefore human laws
do not forbid all vices, from which the virtuous abstain, but only the
more grievous vices, from which it is possible for the majority to abstain;
and chiefly those that are to the hurt of others, without the prohibition
of which human society could not be maintained; thus human law prohibits
murder, theft and suchlike." (Summa Theologica, I-II, 96, 3, per
Peter Kreeft, Summa of the Summa, p. 526)
Thus, the States of the United States (with a nod to
Joe Sobran), in failing to prohibit a grievous vice (killing children
in the womb) that the majority could abstain from and that is to the
hurt of others, fail to live up to the normal standards of human law,
since under such standards that sort of activity would be prohibited
by human law.
That is bad enough. But Roe v. Wade (1973) and Planned
Parenthood v. Casey (1992) go beyond the failure to proscribe abortion.
Since Roe v. Wade the States have been specifically prohibited from
passing abortion laws that live up to the minimal standard of human
law. Roe v. Wade deviates from right reason. It is therefore "an
unjust law, and has the nature, not of law but of violence." (St.
Thomas Aquinas - see above.)
The attitude of respect for the natural law (which got
Clarence Thomas into so much trouble at his confirmation hearings) is
contrasted with the "social contract" theory of law. Here,
the social contract theory means that theory of law that contends that
human law is solely determinable by the society that adopts it, and
that there is no natural moral law to which to compare it, to determine
its validity. This social contract theory of law contends that whatever
law is adopted by a society cannot be legitimately condemned for violation
of some sort of natural law of God.
As our leading legal scholars embrace agnosticism and
atheism and undergird their analysis of American jurisprudence with
Godlessness, the concepts of eternal law, natural law, and the judging
of human law by comparison with the precepts of natural law are regarded
with contempt. The result is that our understanding of the nature of
the United States Constitution becomes distorted. Our jurisprudence
increasingly fails to recognize the foundational truth informing the
Declaration of Independence - that our fundamental rights - including
the right to life of innocent human beings - are endowed upon us by
our Creator. They do not arise from human agreements - unfettered, foundational-in-their-own-right
"social contracts" such as a distorted conception of the Constitution
and its Bill of Rights. The Godless legal scholars, as human beings
will, tend to look for some key person or thing to worship. The most
pernicious idiolatry in the jurisprudence of the United States is the
worship - yes, worship - of the Constitution, especially the Bill of
Rights. The Constitution is not the source of our fundamental rights.
The eternal law of God is, as perceived by us through the natural moral
law written on our hearts. The Constitution, like all human law, must
be measured against the natural law, and if it - or the Supreme Court’s
"interpretation" of it - contradicts the natural law, then
to the extent it does, it loses its nature as law and takes on the nature
of violence.
One other point: As I understand it, the fertilized
human egg - the zygote, prior to implantation in the uterus, can split
apart and become identical twins - sometimes even splitting into identical
quadruplets. Nowadays some make the argument that because there is the
possibility that the duplicating fertilized egg may split into more
than one embryo - more than one individual - prior to implantation,
we cannot honestly assert that in all cases a new human life begins
at conception. The possibility of more than one human coming out of
the fertilized egg is used to justify the claim that abortion prior
to implantation in the uterus is appropriate because a specific new
human being cannot be said to have begun its life until implantation
takes place. There are at least two problems with this argument. First,
the vast majority of times, a specific single new human being begins
with conception - at fertilization. Furthermore, it does not matter
whether the fertilized egg will become a single human being, or, possibly,
more than one human being. The point is that scientific research demonstrates
that the fertilized egg is new human life - it is not simply part of
the mother, but rather has its own genetic code in its own DNA. Therefore,
it is not the property of the mother or part of the body of the mother
- rather it has its own right to life as new, distinct human life. One
way of putting the question is: do we hold human life - especially innocent
human life - as sacred or not?
Of course, the distinctness of one’s own DNA is not
the only physical or scientific marker of one’s status as a separate
human being, entitled to one’s own rights under the law. Identical twins,
for instance, would have the same set of DNA. However, the distinctness
of one’s own DNA from one’s mother’s DNA is a reliable marker of one’s
status as a separate human being vis-a-vis one’s mother. If we start
to clone human beings (which is fundamentally wrong but beyond the scope
of this article), if the clone has the same DNA as his or her progenitor,
the clone’s status as a separate human can be easily seen from his or
her separate, individually integrated body - just as identical twins
are easily seen as separate human beings. I say "if the clone has
the same DNA as his or her progenitor" since I do not know whether
there would be a DNA difference between the progenitor who provides
the nucleus and the clone if the nucleus is inserted into a nucleus-stripped
egg from an individual other than the progenitor.
