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Report to the House of Delegates
of the
American Bar Association
by
Edward Haskins Jacobs
On a Proposal to Amend the ABA Constitution
to
Add this as a fundamental ABA purpose:
To
defend the right to life of all innocent human beings,
including all those conceived but not yet born.
For consideration at the August 12 and 13, 2002
Annual Meeting:
The undersigned
proposes that the American Bar Association Constitution, Article 1,
Section 1.2 - Purposes - be amended by inserting the following
language (between the quotation marks) after the first semicolon: "to
defend the right to life of all innocent human beings, including all
those conceived but not yet born;".
Article 1 of the ABA
Constitution is entitled "Name and Purposes." Section 1.2 is entitled
"Purposes." Once amended, section 1.2 would read in full as follows:
The purposes of the
Association are to uphold and defend the Constitution of the United
States and maintain representative government; to defend the right to
life of all innocent human beings, including all those conceived but
not yet born; to advance the science of jurisprudence; to promote
throughout the nation the administration of justice and the uniformity
of legislation and of judicial decisions; to uphold the honor of the
profession of law; to apply the knowledge and experience of the
profession to the promotion of the public good; to encourage cordial
intercourse among the members of the American bar; and to correlate
and promote the activities of the bar organizations in the nation
within these purposes and in the interests of the profession and of
the public. [The new language is in bold for the purpose of
highlighting.]
This proposal was made
in 2001 as well. By vote of the House of Delegates in August 2001, it
was postponed indefinitely. But that was 2001. This is 2002. Just as
the abolitionist, once rebuffed, is not going to say, "Oh, o.k.,
forget it," children’s lives are at stake, and I cannot forget them
either. And so, I go over here some old ground, but also some new.
Feminism - here
meaning the conviction that women’s government-enforced rights and
privileges have been neglected in the past and now need augmentation -
begs the question, how far should women’s "rights" go? If you are a
mother with a child in your womb, and if bearing your child to term or
keeping your child after birth would be embarrassing, inconvenient,
career-killing, poverty-causing,
husband-limiting, depressing, or physically more than normally risky,
do you have the right to kill your child as a legally-approved exit
from motherhood, as long as you do it before your child fully emerges
from the protection of your body?
Or does your child, by
her mere humanity, have a sacrosanct right to live, and continue to
develop and grow in liberty and pursue happiness as she comes to know
it? The answer: Human life, including that of our littlest ones, is
sacred. This realization was one of the greatest advances of
Christianity over the paganism that condoned exposing unto death the
unwanted child. Abortion, in our society, is quicker than exposure,
and is hidden away in the womb (or at the end of the birth canal) so
that we can lie to ourselves about what we are doing. Respect for
human life is fundamental to civilized society, as "Thou Shalt Not
Kill" signifies.
At one time,
apparently, we knew human life was sacred and to be defended against
all competing claims of "right." Our nation’s declaration of birth -
the Declaration of Independence of July 4, 1776 - set forth the raison
d’etre for the United States of America as a separate nation. The
Declaration asserted that it is self-evident that all men are endowed
by their Creator with the unalienable right to life; and that
governments are instituted among men to secure the rights to life,
liberty, and the pursuit of happiness. This insistence upon
governmental protection of the right to life of all innocent human
beings must be a fundamental function of any legitimate government.
The Creator referenced
in the Declaration of Independence chose to have each new child begin
life within his or her mother. The child in the womb has her own
unique set of DNA. She is a separate human being - not simply part of
her mother. On April 23 and 24, 1981 a United States Senate Judiciary
subcommittee held hearings on the question: When does life begin? The
internationally known group of geneticists and biologists had the same
conclusion - that life begins at conception. But can any of us, with
what we know about the child’s unique set of DNA beginning at
conception, even pretend now that this is not true? The possibility of
twinning does not diminish the recognition that upon conception there
is new human life in the mother’s body - life that is not her own.
Just because the child
is held and nourished within her mother does not give her mother the
right to kill her. To the contrary, the mother with a child in the
womb has a special responsibility to protect and care for her child.
The generally recognized principle that parents must take care of
their children once they are born applies as well to the children
while they are growing and developing in the womb. Now I am not
judging here the status of the soul of those who have had abortions or
help to abort babies. I leave that (and the judging of my own soul) to
God. But what we must judge as a people is what actions are so
intrinsically evil, and do such harm to others who are innocent of
wrongdoing (such as killing them), that the State, any decent State,
must prohibit those actions from being inflicted on their victims.
Obviously, the baby in the womb is the victim of abortion.
I do not want to
offend the women who have been bamboozled by our abortion culture, but
is not abortion the ultimate hate crime - the turning of legendary
motherly love to hatred and killing of one’s own child?
The United States of
America fails in its fundamental mission if it refuses to secure for
the weakest and most vulnerable innocent people amongst us the rights
to life, liberty, and the pursuit of happiness. The ABA fails in its
mission if it fails to stand up for the rights of the powerless. If we
deny the right to life for children in the womb because they are
developmentally immature (and therefore, in the eyes of some, not
"persons"), then we not only tragically deny these children their
rights - we open the door to infanticide and the killing of other weak
and infirm people. There is a crisis in the United States over the
loss of our moral roots. The ABA, which claims to be the voice of the
legal profession, and to be an advocate of the protection of
fundamental rights, should become a strong voice for all the weak and
vulnerable innocents who so desperately need champions now.
We would do well also
to realize that the Constitution of the United States - and the
Supreme Court’s interpretation of it - is not the fundamental source
of human rights within the United States. Our rights to life, liberty,
and the pursuit of happiness do not arise out of our own "social
contract" - the Constitution. To the contrary, as the Declaration
asserts, these rights are endowed upon us by our Creator. The rights
of the child are a burden to the mother, but fundamental rights of
others are a burden we must bear.
_____________________________
At the 2001 Annual
Meeting, the Chair of the Standing Committee on Constitution and
Bylaws reported that the Committee "voted to recommend to the House
that the proposal be considered out of order, in that it is
inconsistent with the first purpose clause of Association’s
Constitution, which is ... ‘To uphold and defend the Constitution of
the United States and maintain representative government.’"
As I pointed out in
last year’s report, the inconsistency contention has no merit. First
the obvious: Nowhere does the actual language of the United States
Constitution specify that the States may not defend the right to life
of each and every innocent human being within their respective
jurisdictions (including all those conceived but not yet born). So the
claim that the defense of such life is inconsistent with defending and
upholding the Constitution, is on its face highly suspect.
If the inconsistency
argument does not rest on the actual language of the Constitution, let
us go beyond the actual language of the Constitution and try to
articulate the argument. The inconsistency argument could be so
stated:
Roe v. Wade
and Planned Parenthood v. Casey prohibit each State from
defending the right to life of each and all innocent human
beings conceived but not yet born, within the State’s
jurisdiction.
The Supreme
Court has determined that the Constitution’s penumbra of
privacy rights attendant to the pregnant mothers is what
prohibits the States from defending the right to life of each
and all those conceived but not yet born.
Therefore, it
is the Constitution itself that prohibits the defense by the
States of the right to life of all those conceived but not yet
born.
Therefore,
advocating the defense of the right to life of all those
conceived but not yet born is inconsistent with upholding and
defending the Constitution since the Constitution prohibits
that defense.
But it cannot be
reasonably be said (1) that the holdings of Roe v. Wade as modified by
Planned Parenthood v. Casey are the Constitution itself - and (2) that
if one opposes Roe and Planned Parenthood, one is opposing the
Constitution itself - and failing to uphold and defend it. The lack of
identity of particular Supreme Court interpretations of the
Constitution with the Constitution itself should be rather
self-evident. No doubt you (the members of the House) are aware that
legal conclusions underlying many Supreme Court decisions - including
those interpreting the Constitution - have been rejected by later
Supreme Court decisions although the relevant language of the
Constitution has not changed in the interim. Thus, generally,
contending that opposition to a particular Supreme Court
interpretation of the Constitution constitutes opposition to the
Constitution itself is stretching language and logic to the breaking
point.
Now, maybe a
persuasive argument could be made that although some Supreme Court
interpretations of the Constitution are subject to later change, some
are so indisputably correct that in some real sense the interpretation
could be said to be the Constitution itself. If the Supreme Court
rationale for Roe v. Wade and Planned Parenthood v. Casey were so
rock-solid and accepted by American society in general as the proper
articulation of a virtually undisputed fundamental individual right
grounded in the Constitution, one could argue that in effect these
Supreme Court decisions are equivalent to the Constitution; but that
is certainly not the case with Roe v. Wade and Planned Parenthood v.
Casey. (And note that Planned Parenthood itself modified fundamental
holdings of Roe.)
The truth is quite to
the contrary of the 2001 position of the Standing Committee on
Constitution and Bylaws. The reality is that the rationale underlying
these two Supreme Court decisions deserves no support from an
organization which is pledged to uphold and defend the Constitution of
United States. This is because the underlying rationale for the
decisions is bogus, even if one accepts the concept of the privacy
rights penumbra. The Supreme Court’s opinion in Roe v. Wade takes the
position that neither Texas nor any other State may legislatively
determine that human life begins at conception, since (the Court
asserted) there is uncertainty over the legitimacy of that claim -
that human life does begin at conception. But this claimed uncertainty
is a figment of the Supreme Court’s imagination. There is no real
uncertainty over the point at which each human life begins - we all
have our own unique set of 46 chromosomes. This set is forged at the
moment of conception. The new child (or, perhaps, eventually, the new
twins) is new human life - residing within the child’s mother, but not
simply a part of her.
Based on the faulty
contention that the child in the womb cannot properly be legislatively
determined to be a human being, the Supreme Court denigrated the child
to the status "potential life," stripping the child of her rightful
status under the law as a human being. The Court then set up a false
dichotomy of competing rights: the mother’s "right to privacy" right
to kill the non-human blob in her womb verses the State’s interest in
protecting the "potential life" in the womb and the health of the
mother. (Referring to a living being with its own DNA as "potential
life" is doublespeak at its best.) The hand dealt the child in the
womb by the Supreme Court was dealt from a stacked deck - based upon
the lie that the child in the womb is not really a child. As a
"potential life" rather than a real, live human being, the child’s
real rights get pushed aside by the Supreme Court. The rationale of
Roe v. Wade is not indisputable (and thus, one might argue, the
Constitution itself); rather, the rationale of Roe v. Wade is fatuous.
Finally, the proposal
(and all already articulated purposes in ABA Constitution Section 1.2)
presupposes the ABA defense of the right to life of the innocents will
be undertaken by lawful means. Suppose the ABA as an organization were
to advocate a change through lawful means in the United States
Constitution (or in a Supreme Court interpretation of the
Constitution). Would this mean the ABA had abandoned its purpose to
uphold and defend the Constitution? Of course not. We have an
obligation to address constitutional issues that need addressing. We
honor the Constitution by doing so. So, even if I were advocating
change in the language of the Constitution by lawful means, my
proposal would not conflict with the ABA purpose to uphold and defend
the Constitution.
It has further been
suggested that what I advocate is a policy position for the ABA, not a
purpose of the ABA, and therefore my proposal should be rejected on
the technical ground that it does not belong in Section 1.2 of the ABA
Constitution. I disagree with this contention also. After all, what is
a purpose? A purpose is simply a fundamental policy. The innocent
human beings in the wombs of their mothers (who have become mortal
enemies of their own children) cry out for our country to renew its
commitment to the basic principles of the Declaration of Independence
- that every innocent human being has the right to life, liberty, and
the pursuit of happiness. And it is not just the innocents in the womb
who cry out for champions. We are sliding down the slippery slope of
disregard for the sanctity of human life for many outside the womb as
well - the old, the infirm, and the disabled. If we do not wake up and
start standing up for what is right, soon many of these innocents will
have to be justifying why their lives should be spared - why we should
be spending money and effort on their inconvenient and bothersome
lives.
At the House of
Delegates last August, the speaker who advocated postponing the
proposal indefinitely said that the proposal "changes fundamentally
the purpose of the American Bar Association and the Constitution and
Bylaws, and has ramifications over a wide array of policy that the
Association has adopted and implemented." I have reviewed the ABA
Policy and Procedures Handbook and note here policy positions taken by
the ABA that are, or may be regarded as inconsistent with the proposal
being made hereby.
The ABA Policy and
Procedures Handbook lists hundreds of standing policies adopted by the
ABA over the years, although apparently some sort of action was taken
at the 2001 meeting to "archive" some policies over ten years old. I
have not investigated what policies have been archived, if any. 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 Beijing, 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." At the annual meeting in 2001 the ABA
adopted a policy provision opposing the Mexico City Policy, which
prohibits overseas funding by the United States of nongovernmental
organizations that provide abortion-related health or medical
services.
If the proposal is adopted,
inconsistent policies would be revoked by implication. Legal
protection for all innocent human life is essential to a properly
ordered society. It is fundamental policy that belongs in purposes of
the American Bar Association if the Association is to stand up for
fundamental human rights.
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