DEAR AL

Dear Al:

First, let me tell you how delighted I am to receive your detailed and expansive response to my email. Your email invites the kind of intellectual exchange that is not only invigorating, but also profoundly important to the success of our mutual efforts to improve our nation.

My first observation stems from the fact that the pro-life people would read the personhood amendment differently than you first did.

Important point here. Words have meaning. Constitutions are especially required to say what they mean and mean what they say. So if you were willing to agree with the amendment before you realized its implications for abortions, what words would you change? Which would you omit? What would you add?

You want to say that the word “person” as used in the Constitution does not include corporations. OK. So we agree that a “person” is a human being. Not a gathering of human beings. Not a group or a family, not an assumed name, or a fictional character, but an actual, living member of the species ‘homo sapiens.”

What makes something a person? Nose, eyes, ears? A mouth? Manikins have all of these. So do many animals. Two arms and two legs? Monkeys have these.

You say that there is a range of opinion and belief about pre born humans. I agree. Opinion and belief are often affected by perceived self interest. They are essentially subjective measurements. In the public square, mere subjective opinion or belief is unpersuasive until backed by objective knowledge.

The science of obstetrics has blossomed in our age of electronic communication. The medical profession, in cooperation with vastly sophisticated technology, has given us a stunningly clear understanding of the development of human life in a mother’s womb.

We know that pre born humans move independently of their mothers. We know that they experience pain. We know that they respond to various forms of treatment and stimulus.

You will notice that I have not mentioned religion. I did not mention it because it has no place in the debate about abortion. The criminal abortion laws of the fifty states were not expressions of religious belief. They were adopted by legislatures consisting of people of many faiths. They echoed the Hippocratic oaths traditionally taken by members of the medical profession.

From time immemorial human beings have known where babies come from. Women have known when they are pregnant. Their bodies go into a protective mode. They are emotionally affected by the prospect of childbirth. It’s physical, hormonal. These are all simple, biological facts, and while they are reflected in various forms of religious belief, they are not merely ecclesiastical constructs.

Human beings have a strong survival instinct. Always have had. As long as history has been recorded, there is proof that childbirth is a happy event. New life, continued life, has always been perceived as an occasion of joy.

In the old days at common law, the destruction of an unborn baby after quickening was criminal. They didn’t have ex-rays or ultra sounds. Quickening was the only way people had to know that there was a baby living inside of a woman.

Abortion is a matter of civic concern. Since 1973 more than 60 million Americans have been denied the most basic human right: the right to be born alive. For many it’s a religious issue, but for all it is a civil rights issue.

We live in a day and an age when the science of eugenics is reviving. Family planning has morphed into human engineering. The children of the poor are dismembered and sold for body parts. The intelligentsia can avail themselves of certified paternity from sperm banks to propagate the ‘brightest and the best.’

You have eloquently described the inhumanity that has stained the pages of history, whether racial, religious, ethnic or crassly commercial. There will always be evil in the world, and we must always oppose it mightily.  

In the meantime, can we not agree on a constitutional definition of a person that will satisfy both sides of the table?

HARD TIMES

In my last blog, I commented on what I called a dangerously inhuman cultural drift. That drift became a torrent this morning when Polly sent me a link to a horrendous video. I urge you; no, I beg you, to watch it. Send it to your friends. Shout it from the rooftops. Write your Congressman. Send a letter to the Editor. Go on Facebook. Tweet on Twitter. Here it is:

https://www.youtube.com/watch?v=jjxwVuozMnU

Somehow, a courageous and dedicated investigator, posing as the representative of an organization which supplies fetal tissue to hospitals, managed to engage a senior representative of Planned Parenthood in a conversation which was surreptitiously recorded on video.

Deborah Nucatola, Senior Director of Medical Services for the Planned Parenthood Federation of America is a charming, loquacious medical doctor. In the course of a luncheon, she confirmed that abortion providers affiliated with the Planned Parenthood Federation of America routinely request that their clients sign a release of any claim to the tissue removed from their bodies during an abortion.

She also confirmed that such tissue as may be requested by hospitals, and medical research facilities is routinely donated by their providers. Not sold, she says, merely donated for scientific or health related purposes. The receiving hospital or other facility typically pays between $30 and $100 to cover the cost of preserving and transporting each specimen.

I got a couple of paragraphs into this blog when it dawned on me that I have bitten on some believable scams, particularly emails designed to ensnare those of a conservative disposition. So I went to Snopes. I was not the first to inquire. Snopes confirms that Deborah Nucatola is indeed the Senior Director of Medical Services for the Planned Parenthood Federation of America.

But whether the video is legitimate or not, Snopes has not yet determined.

I did, however, find an opposing video on a talk show called The Young Turks. Here it is:

https://www.youtube.com/watch?v=06f1-rCKxUQ

So the opposition concedes that the lady in the video was, in fact, Deborah Nucatola, the Senior Director of Medical Services of Planned Parenthood Federation of America. But, it insists that the video was “heavily edited” to create a false message.

We have all seen how diabolically videos can be edited, so I went back to the drawing board and found the full length, two hour and forty-two minute version of the Nucatola luncheon.

The unedited version makes it quite clear that non profit abortion providers do not sell fetal tissue for profit. Dr. Nucatola insists that whatever is paid to them merely reimburses their expenses. She does, however, contend that making fetal tissue available for research and/or transplant is a good thing, and therefore should motivate additional contributions to Planned Parenthood by its supporters.

She also concedes that before she starts her Thursday surgical marathon, she makes note of the type of tissue being sought by the hospitals; liver and heart being high on the list.

Then, of course, there is the matter of skillful removal. One technique, according to Doctor Nucatola, involves turning the fetus around so as to simulate a breech birth. When the baby comes out feet first, the entire body can be severed at the neck, thus keeping all the organs intact.

The Washington Post reports that The National Institutes of Health spent $76 million on research using fetal tissue in 2014, records show, with plans to spend roughly the same amount this year and in 2016.

Last November, according to the Post, Organovo, a biomedical company in San Diego, started selling human liver tissue primarily to pharmaceutical companies. Today, nearly $2 million worth of orders are booked, said Michael Renard, the firm’s executive vice president.

Planned Parenthood may be donating unwanted fetal tissue for research, but somebody is making a lot of money on those dead babies.

And then there are folks who protest the inhumane treatment of pigs in America.

PANDORA’S BOX

One problem with judicial law making is the difficulty of fixing mistakes. If a legislature passes a law, and it turns out that, in its operation, many unforeseen things result, it is easy enough for the legislature to amend or repeal the law at its next session.

Not so with the courts. When a court decides a case, the case is over. There is no process whereby the court can call the matter back and rewrite its opinion.

One obvious problem with the Obergefell case is the oft repeated phrase “the right to marry.” It appears 29 times in the Kennedy opinion. The point is belabored. In the opinion of the majority of the Court every person has a constitutional right to marry whomever they choose to marry.

The language of the opinion does not limit the right to marry to homosexuals. Clearly the majority intend that the right to marry is embedded in the Fourteenth Amendment guarantee of equal protection of the law.

Obviously, prior to Obergefell, homosexuals had the same right as everyone else to marry a person of the opposite sex. In expanding that right to marry the Court did not say that their opinion applies only to homosexuals. Heterosexuals are, in the opinion of the majority, equally entitled to marry someone of the same sex.

The Court was not declaring a limited, orientation specific, right to marry a person of one’s same sex. It is hardly to be supposed that the state legislatures could enact a requirement that an applicant for a same sex marriage prove his or her orientation in order to qualify for a same sex marriage license.

No, I believe the Court intended to make the right to marry a person of one’s own sex universal. That said, same sex marriage may well be an economic strategy for heterosexuals. Two male or two female college freshmen bent on qualifying for married student housing; young men seeking to be deferred from military service, friends bent on maximizing income tax benefits or social security benefits; the list of strategic marriages goes on and on.

Moreover the universal ‘right to marry’ will call into question the logic of statutes prohibiting marriage between persons within a designated degree of kinship. Those laws prohibit incestuous marriages because human experience tells us that the progeny of such unions are at risk of deformity or other birth defects.

Obviously, that rationale does not apply to same sex unions, so it can be expected that legal challenges to those rules will be mounted, citing the Obergefell “right to marry.”

Once the Court has opened that gate, the number of tax incentive unions will burgeon. The inherent fairness of allowing heterosexuals to qualify for the same economic benefits as homosexuals will undoubtedly mute any resistance from the major media.

There are other evil spirits jumping out of Pandora’s box as well. Even the best intentioned same sex partners cannot procreate naturally. Commercial traffic in male sperm is already a fact of American life, and the science of 'rent a womb' is accepted. If there is not yet an 'egg bank' to complement the sperm banks, there soon will be. As same sex marriages proliferate, our culture will more and more tolerate what can only be called the manufacturing of babies.

There are already a number of advocates for multiple marriage unions. If the ‘right to marry’ infers the right to marry anyone of a person’s choosing, what logic will keep the Court from approving bigamy and polygamy?

Combined with the mandate of Roe v Wade, we are embarking on a dangerously inhuman cultural drift. The science of eugenics, which gained a great deal of attention in the early years of the last century still has many devotees.

Animal breeding is an accepted and respected science. Dogs and horses have their ‘papers’ evidencing their genetic background. Champion racehorses are put out to stud because breeders know that running ability is at least partly hereditary. Humans have hereditary traits as well. As ‘having children’ becomes more and more an exercise of shopping and choosing, the science of eugenics will be more and more a topic of interest.

Hard times are coming. 

JUDICIAL NOTICE

There’s a practice in the law known as Judicial Notice. Every trial Judge is familiar with it. Simply stated, Judicial Notice means that the trier of the fact be it a judge or jury, may consider certain things to be true without any evidence or testimony offered to prove them.

Things like history, science, matters of public record and ordinary common knowledge can be ‘noticed’ or taken as proven. The day of the week and date of the month, the pull of gravity, the number of feet in a mile, the name of the our first President and the popularity of the Super Bowl are examples of facts the Court will notice without evidence or proof.

In the United States Supreme Court, ever since Louis Brandeis filed his famous brief in the case of Muller v Oregon in 1908, it is common for briefs to argue facts and present statements and arguments which were never claimed or argued in the trial court, with the expectation that the Justices will simply take Judicial Notice of the conclusions claimed in the brief.

The recent case of Obergefell v Hodges presents an interesting issue concerning Judicial Notice. The majority opinion contains two references to homosexuality characterizing it as an “immutable” condition.

Interestingly, the opinion clearly states that, in the last century, homosexuality was generally regarded as a mental disorder. In spite of that concession, the opinion concludes that homosexuality is now considered an immutable normality. In support, the opinion cites an Amicus Curiae brief filed on behalf of various psychological and psychiatric associations.

While the cited brief asserts that most homosexuals feel they have ‘no choice’ and that interventions intended to change sexual orientation are generally unsuccessful, it nowhere describes homosexuality as an ‘immutable’ condition.

Indeed, the Amicus brief states that sexual orientation necessarily involves relationships in which sexual activities take place. In short, those experts insist that homosexuality is not merely a disposition. It is conduct.

The Supreme Court went beyond the very experts they quote to take judicial notice that same sex intimate relations are a consequence of an “immutable” urge, which the parties are physically and psychologically unable to control.

Even if the Amicus brief had been quoted correctly, its contention about homosexuality hardly amounts to a fact of which a court should take judicial notice. Homosexual activity is not universally accepted as normal behavior, even by social scientists, and its claimed normality is certainly not a matter of  common knowledge of which a court should take judicial notice.

   

What is common knowledge, and what can and should be noticed as factual by the Courts is that human beings are of two kinds: male and female; that their differing biological make up reflects their separate roles in the procreation of human beings; that males and females have natural biologic, physical and emotional dispositions which tend them toward the propagation of the human race.

Moreover, it is common knowledge that the sex drive is one of the most forceful human emotions. Human history is replete with tales of heroism, villainy,  death and achievement fueled by real or fancied sexual gratification. Certainly no testimony is needed to establish that organized governments commonly establish laws designed to direct the reproductive urge toward social desirable consequences.

Nor have the various abnormal sources of coital pleasure escaped the attention of mankind. Especially in those circumstances where males are denied the company of females, homosexual activity often prospers. That it has little to do with natural inclination or preference, and much to do with the circumstance of enforced abstinence is a matter of common knowledge noticeable by courts.

The conclusion is rather obvious. The majority in the Obergefell case subscribed to an undeniably political screed, based not on traditional legal principles, but founded entirely on the personal opinions and biases of the signatories.

The evil wrought by the Obergefell decision will descend on American society like an opaque curtain. Behind it will fester a myriad of unexpected and untoward consequences.

The slippery slope of Hedonism will be greased yet again, and our beloved nation will slide further toward Armageddon.

PARTING SHOT

Finally, the medical and dental priorities have been satisfied and we are about to aim our Acura North on I 75, step on the gas and leave 90 degree heat and humidity behind.

Polly, God bless her, has done a yeoman job of packing. I usually make the trip to Michigan with a simple overnight bag filled with sox and underwear. She fastidiously assembles her wardrobe to be prepared for all kinds of weather and every level of social propriety.

There are still a few odds and ends to be attended to, but right now I have a couple of minutes to fill, and I have decided to make one more pass at commenting on the gay marriage cases.

My first efforts didn’t pass my domestic editorial board.

I hope you’ll understand. As a lawyer, a judge, a legal educator and sometime student of the United States Constitution, I read the majority opinion in the Obergefell gay marriage case with disappointment bordering on disgust.

The Court didn’t even pretend to be rendering an opinion explaining its decision in the cases on its docket.  Quite the contrary, the Court openly told us that it was creating a new right, which it declared to be binding on all 308 million people in the United States.

The Congress of the United States needs to garner a two thirds vote in both Houses just to propose a constitutional amendment. The Court has claimed the power to actually adopt an amendment by a 5 to 4 vote.

Candidly, the decision made me mad. Of course, it didn’t really surprise me. The Court only hears cases it wants to hear. When they took the gay marriage cases, it was pretty clear that they wanted to decide as they did.

In my calmer moments, I sigh and say, ‘Appellate Courts make lots of mistakes. Look at the Dred Scott case, where they said black people couldn’t be citizens. Look at the Plessy case where they said the States could have segregation laws. Those decisions didn’t stand. Eventually, they were overruled.

Appellate courts are always searching for the truth, always correcting the mistakes of the past. Perhaps some day, some future Supreme Court will overrule Roe v Wade and the Obergefell case. Some day the Supreme Court may realize that it is only a court and not a super legislature and get out of the business of running prisons and school boards and imposing new taxes. Some day. But probably not soon.

The difficulty with a run away Supreme Court is that every decision makes somebody happy. And if enough people, enough of the ‘right’ people, are happy with a decision, it is celebrated as a landmark improvement in the lives and liberties of the American people.

The really sad part is that Supreme Court Justices live in a different place. Not only do they have little or no contact with commoners, their social and professional lives are cocooned by clerks, lawyers, academics and sycophants whose every word and gesture reinforces the notion that they are the most powerful leaders of the civilized world.

It has been well said that power corrupts and absolute power corrupts absolutely.

Unfortunately, in the public square, it is difficult to depersonalize issues of law and governance. The folks in line at the supermarket who are appalled by the Court’s decision have no interest in fixing the Supreme Court so that it will be more obedient to the Constitution. They might gladly hang Anthony Kennedy in effigy, or impeach Justices Kagen and  Ginsburg who had performed gay marriages before they heard the case, but if you talk about changing the way we choose Supreme Court Justices, they glaze over.

Perhaps Thomas Jefferson was right. Maybe the only way the people can deal with a run away Supreme Court is by nullification and interposition. Call it protest, civil disobedience, whatever. Maybe some caterers will have to go to jail for refusing to service gay weddings. Maybe some county clerks will get fired for refusing to issue licenses, but just maybe that’s the only way the people can take back the right to make their own laws in a republican form of government.

Or, we could all just shrug our shoulders and sigh, “You can’t fight City Hall. Why bother to try?”