Monday, May 15, 2017


I am indebted to Barbi Aumiller and Shelly Horniman for their kind invitation to speak to you this evening.

Y’know, psychologists tell us that next to dying, the thing that many people fear the most is making a speech.

I must confess, I am not one of those people. In high school, I won all sorts of awards for public speaking. It always bolstered my self image to hear people applaud.

In a couple of weeks, I will be eighty-eight years old. I don’t get very many invitations to speak in public any more, so if I seem to be having a good time up here, it’s because I really am having a good time up here.

There is nothing an eighty-eight year old lawyer appreciates more than a good audience.

Many of you, I am sure, were in the audience when I addressed the Right to Life rally in Gaylord last year. You will remember that I predicted that we would vote for Donald Trump, but not because we liked him. Certainly, many of us didn’t like him.

But I said that we would vote for him because he had promised to appoint a Supreme Court Justice in the tradition of Antonin Scalia.

Whatever else may be said about President Trump, the fact is that he kept that promise. Neil Gorsuch is now a member of the high court, and we have cause to hope that the United States Supreme Court may one day begin to recognize the constitutional rights of the unborn.

But my friends, I have to remind you that one victory doesn’t win a war.

Realistically, we have to admit that the right of every unborn human being to complete the period of natural gestation and see the light of day, will not be protected by some sweeping edict from the United States Supreme Court.

During his confirmation hearings, Judge Gorsuch made quite a point of his respect for judicial precedent. Stare Decisis is the Latin phrase which means “let the decision stand.’’ Judges typically respect the decisions of their predecessors on the bench. It’s what gives consistency and predictability to our Common Law.

Frankly, I don’t think the Supreme Court, even with a conservative majority, will directly reverse the decision in Roe v Wade. I know you don’t want to hear me say that. You are, after all, the vanguard of the Right to Life movement. You spend your time and your money, your energy and your enthusiasm to protect and defend the lives of unborn children.

But the fact is, that the best we can hope for, and the decision most consistent with our constitution, would be for the Supreme Court to put things back the way they were before Roe v Wade was decided.

That means, of course, acknowledging the right of the 50 States to make laws restricting or prohibiting abortions, but it also means restoring the power of the State Legislatures to allow abortions, either on demand or for some specified reason.

And remember that, before Roe v Wade was decided, abortion was permitted in 20 states for various different reasons.

In short, what I see happening as Judge Gorsuch weighs in on the Supreme Court docket, will be a process of chipping away at the abortion culture which has grown up around the Court’s infamous decision in Roe v Wade, and reinstating the authority of the State Legislatures to restrict abortions; to spell out when abortions will be allowed and when they will be prohibited.

Some of you will certainly be disappointed. After all, we won the election. Our new President has given us a pro-life majority on the Court. Why won’t the five conservative Justices simply reverse Roe v Wade?

Let me see if I can explain it.

First of all, you have to understand that the Supreme Court is a collegial body. Those nine people work together, they eat together, they talk to each other every day, and they try to convince each other. That’s what Judges do.

They have lots of disagreements, but they all work at trying to persuade their colleagues and they often do change each other’s minds. Of course, they have many differences, religiously, philosophically, politically and personally.

But they do have one thing in common: They love the Court. They all want the Supreme Court to be prestigious, to be respected, to be honored by the people. If they could, they would make every decision unanimous. They know that the more nearly unanimous a decision is, the more it will be accepted and respected by the press, the broadcast media and the public at large. 

Judge Gorsuch is the new kid on the block. I suspect that he will want to be perceived as a team player; a judge who puts the Court as an institution at the top of his professional agenda.

A lot of horse trading goes on in an appellate court. I know because I have been there. Sometimes it only takes a word or a phrase in a Judge’s opinion to win or lose the vote of a colleague.

So the appointment of Neal Gorsuch is not the end of the fight for unborn life. In fact it is the beginning of a new phase in the crusade you and I have waged for so many years.   

As we gather here this evening, many people in the pro life movement are focused on Senate Bill 231 introduced in the 115th Congress by Senator Rand Paul and eight other Senators. It’s called the Life at Conception Act of 2017.

This is what it says:

To implement equal protection for the right to life of each born and preborn human person, and pursuant to the duty and authority of Congress, including Congress’ power under section 8 of article I of the Constitution of the United States to make necessary and proper laws, and Congress’ power under section 5 of the 14th Amendment to the Constitution, the Congress hereby declares that the right to life guaranteed by the Constitution is vested in each human being. Nothing in this Act shall be construed to require the prosecution of any woman for the death of her unborn child, a prohibition on in vitro fertilization, or a prohibition on use of birth control or another means of preventing fertilization.

On January 24th that bill was read twice and referred to the committee on the judiciary.

The same bill was introduced in the 114th Congress back in January of 2016. It was then known as Senate Bill number 2464. It was read twice in accordance with Senate Rules and then it was placed on the calendar. That is the last that was ever heard of it.

I suspect that is what will happen again this year. The fact that the bill has been referred to the judiciary committee suggests to me that there are a number of Senators who think the issue should be decided by judges, not senators.

A good argument can be made that it should be left to the courts. The Fifth Amendment – part of our national Bill of Rights – specifies that no person shall be deprived of life, liberty or property without due process of law.

So we already have constitutional protection of the right to life for every person. The problem is; what does the word person, as used in the Bill of Rights, mean?

Did the framers of our national charter consider a child in his or her mother’s womb to be a “person”?

Certainly their knowledge of pre natal life was only a fraction of what we know today.

So how does a conservative judge; a judge who looks to the original meaning of the words used in the Constitution; how does he or she interpret the word “person.”

I can’t answer for all conservative judges, but I can tell you what I wrote in 1971 in the case of O’Neill v Morse where an unborn child was killed in an automobile accident: The phenomenon of birth is not the beginning of life, it is merely a change in the form of life. The principal feature of that change is the fact of respiration. But the law does not regard the incidence of respiration as the sole determinative of life. Respiration can be artificially induced or mechanically supplied. Life remains.

Frankly, if I were sitting on the United States Supreme Court, I would have no trouble coming to the conclusion that the founders of our nation intended to mean “an identifiable human being” when they used the word “person.” In those days, a name, a face, a family; these were the things that answered the question “Who are you?” or “What are you?”

In short, identity is what makes a person a person, and it always has.

Since the DNA of an unborn child can now be determined, the unborn can now be identified. An unborn child in 2017 is now an identifiable human being, just as surely as a new born baby was in 1789.

That still leaves us with this problem: Does the Congress have the power and authority to tell the Court how they should interpret the Constitution?

In my personal opinion they don’t. I think the meaning of the Constitution is itself a constitutional matter and should be decided by the courts or by the people who have the power to amend the constitution.

If the Congress wants the Constitution to be interpreted in a certain way, they have the power to propose an amendment to the Constitution. That is the right way to do it.

Anyway, whether abortion is a legal or a political question doesn’t matter to most lawmakers. They know that the issue is the third rail of our culture; it is the question that divides our nation most bitterly; and the politicians don’t want to vote on it one way or the other.

It is interesting that people on the Left accuse conservatives who are skeptical about global warming of being opposed to science. On the abortion question, the shoe is on the other foot; conservatives have science in their corner.

The strides that have been made on the subject of pre natal life are truly astounding.

My granddaughter is pregnant. She has an app on her smart phone that tells her every day how her baby is developing. She isn’t due until October, but she already knows the baby is a girl.

We know so much more today about life in the womb; we hear the heart beat, we watch the formation of hands, feet and face, we even determine blood type and the baby’s DNA, a unique four digit number that stretches ad infinitum and belongs only to one specific, individual human being.

And as science has advanced, as we learn more and more about pre natal life, the fact that the unborn are human beings is more certain and undeniable.

There is, of course, a word for the killing of a human being. It’s called homicide.

The NARAL people don’t want to hear that. They don’t want to think about it. And it’s not just the pro choice activists who want to keep their heads in the sand.

The fact is that abortion has a huge constituency in America. Sixty million abortions have been performed here since 1973. That means there are millions upon millions of women who have had abortions, and millions more who have counseled women to abort; husbands, boy friends and girl friends, fathers and mothers, grandfathers and grandmothers. And there are legions of people who have profited in the abortion industry, because it is an industry. It is big, big business.

Still, the task that lies before us is the same task that has confronted Christianity for two thousand years. Somehow, we must learn to hate the sin and love the sinner.

On February 18th of this year, Norma McCovey, the woman who was the “Roe” of Roe v Wade died in a nursing home at the age of 69. Her life is a story of conversion from being the prime proponent of abortion to being a staunch defender of the right to life of the unborn.

Her story is proof positive that truth can and will overcome falsehood; that wisdom will conquer selfishness; that decency can and will survive in a society beset by false notions and twisted logic.

That’s why I have come here tonight to ask each and every one of you to stay the course. Keep up your good work. Support those in public life who are with us. And don’t be afraid to speak up, to let your friends and neighbors know where you stand.

It will be a long and difficult struggle, but it is a battle that can and must be won. Slavery was abolished in 1863 by Abraham’s Lincoln’s Emancipation Proclamation.

Still, it took more than a hundred years before Martin Luther King Jr could say: “Free at Last, Free at Last. Thank God Almighty, we are free at last.”

Indeed, the battle for civil rights continues this very day.

Our struggle for the protection of the unborn is not over by a long shot. In due time we must and we will win the minds and hearts of the vast majority of our fellow citizens.

Of course, the fact is that public opinion isn’t logical. It isn’t consistent. It is rarely well informed. It is the sum of millions of personal experiences, and countless personal preferences. It is affected by news; by real events and by unsubstantiated rumors; by pictures and speeches and motion pictures and by social media.

But public opinion is also formed by the lives and example of good and decent people in every community who respect and revere the God given treasure of human life day in and day out.

Ours is a daunting task. We know that. You and I have been in the trenches a long, long time. We know that the abortion culture is a ubiquitous, powerful enemy. But we shall not falter; we shall not fail. We will stand together for the right to life of every human being. We shall keep the faith. We shall fight the good fight … and we shall succeed.


  1. It was a wonderful evening and your speech was excellent - love the book too. Give our love to Polly. Jan and Larry

  2. Haven't heard from the "Old Judge" in quite awhile. However, it was worth the wait. The logic and eloquence of your articles never cease to amaze me. Great job and keep them coming.