Posts Tagged ‘Law’

A Bold But Risky Step on Abortion

Thursday, May 16th, 2019

The State of Alabama has taken a bold step, enacting a law that would ban virtually all abortions. The new law has generated a great deal of controversy, as one might expect. Abortion is becoming a “zero sum” issue in our political culture – with the choice being made to look as if it is between either maximum protection for the unborn child or unlimited license for a woman to have an abortion.

Pro-lifers are hoping that this new law may be the vehicle for the Supreme Court to overturn Roe v. Wade. Other laws have also been passed recently and may reach the Court, like those banning abortion after a fetal heartbeat can be detected (about 7 weeks) or after an unborn child can feel pain (about 20 weeks).

Based on the current composition of the Supreme Court, I’m dubious that they are ready to overturnRoe. There’s only one Justice (Thomas) who has indicated that he would do so, and there are at least four (Kagen, Breyer, Ginsburg and Sotomayor) who certainly will not. We don’t have any real idea how the two newest Justices (Kavanagh and Gorsuch) will approach the issue, nor is it by any means clear that Chief Justice Roberts or Justice Alito will vote to overturn Roe.

So it’s possible, but in my view it’s a long shot. There’s also a major risk that the Court could make the law even worse than it currently is. This involves some legal “inside baseball” considerations, so let me explain.

Right now, the Court’s abortion rulings are based on the unenumerated (i.e., not specifically listed in the Constitution) “right to privacy” that is protected under the Due Process Clause of the Fourteenth Amendment (“…nor shall any state deprive any person of life, liberty, or property, without due process of law”). This approach to constitutional law, which is called “substantive due process”, is how the Supreme Court in Roe invented the right to an abortion.

The origin of these unenumerated rights is hotly contested among legal scholars. We would point to their origin in natural law/natural rights, which were understood in the English legal tradition as coming from God, and which are inherent in the nature of the human person and society (as the Declaration of Independence put it, they’re “inalienable”). In this view, the state doesn’t create these rights, but is instead bound to recognize and protect them. Ironically, the “substantive due process” principle that led to Roe is also a kind of natural law argument, but it is a distorted one based on a twisted understanding of human nature and society, since it holds that personal autonomy is the highest value.

Regardless of where these rights come from, the key legal battle is over what standard the courts will use to evaluate any law that has an effect on them. In the case of Planned Parenthood v. Casey, the Court set out the test for whether an abortion regulation would violate that right. The key rule is that prior to fetal viability, there can be no prohibition of abortion, and any regulation will be struck down if it imposes an undue burden on the woman’s ability to obtain an abortion. The Court said that this standard evaluates whether the regulation has “the effect of placing a substantial obstacle in the path of a woman’s choice”. In a later case, the Court read this amorphous “undue burden” standard so broadly that it would appear to endanger virtually any regulation ( Whole Women’s Health v. Hellerstedt).

As problematic as the “undue burden” standard may be, it still permits pro-lifers to argue for the validity of a whole host of abortion regulations. States have passed many such bills, including requiring hospital admitting privileges for abortion doctors, health and safety regulations, outlawing particularly cruel methods of abortion, and banning discrimination against unborn babies with disabilities. All of these are step-by-step methods to enact real protections and to advance a greater social acceptance of the dignity of human life.

In my view, passing laws that outright prohibit all or most abortions is risky as being “too fast, too soon”, given our current social and legal attitudes and values. The danger is that the Court may decide (as Justice Ginsburg has suggested, and as the plurality opinion in Casey implied) that the proper place for the protection of “reproductive liberty” is under the Equal Protection Clause of the Fourteenth Amendment (“… nor deny to any person within its jurisdiction the equal protection of the laws”). The argument is that women cannot participate equally in society unless they have the ability to control their reproductive systems, and regulations of abortion limit that ability and thus treat them unequally under the law.

That would be a legal disaster. The Court has already held that sex discrimination is subject to “intermediate scrutiny” under the Equal Protection Clause. This means that any regulation would have to satisfy a test of whether there is an “important state interest” and the regulation is “substantially related” to that interest. In fact, the Court has said that the state must give an “exceedingly persuasive justification” for any classification based on sex. The courts have been very tough in applying that standard in sex/gender discrimination cases, particularly recently in the gender identity cases. I doubt that many abortion regulations would survive this test.

Even worse, going to the Equal Protection Clause would invite the Court to decide that “reproductive liberty” is a “fundamental right”. That means that the courts will apply an extremely stringent “strict scrutiny” standard that requires proof of a “compelling government interest” and that the law be narrowly tailored to meet that interest. In practice, a strict scrutiny standard is a death sentence to regulations.

We have to recognize that lower federal courts and many state courts are still hostile to us despite many good appointments by the current President. The legal community and academia have been deeply corrupted by the flawed jurisprudence and politics of “reproductive rights”. Convincing courts to uproot the poisoned doctrines of Roe and Casey will be a very difficult task, and would create a political firestorm.

The goal of protecting every human life is shared by every pro-lifer. But politics is always an area for prudence, meaning that we must be careful in the way we advance our values so as not to make things worse, even as we try to make them better.

The Truth About Late Term Abortions

Wednesday, February 6th, 2019

In the wake of the passage of the abominable Reproductive Health Act here in New  York, and the move to pass similar bills in Virginia, New Mexico and Rhode Island, abortion advocates and apologists have turned on the fog machine to hide the truth. That’s because the truth is horrifying.

They have been claiming that late-term abortions are rare, that they are only done for desperate reasons like imminent fetal demise, that the bills do not legalize abortion up until the moment of birth, that a live birth in the course of an abortion never happens, and that in any event that would not constitute infanticide.

All of these claims are false.

According to a study from the pro-abortion Guttmacher Institute, approximately 1.3% of all abortions are done after 21 weeks. Since they estimate the total number of abortions to be about 900,000, that means that every year, about 12,000 abortions take place after the time that a child can feel pain and has a chance to live outside of the womb. Can something that happens as much as 12,000 times a year be called rare?

Let’s put that in context. There were about 14,000 firearm homicides in the US in 2016, according to the CDC. I doubt that anyone considers gun violence to be “rare”. Consider also that there were 35 people killed in school shootings in the United States in 2018, and that is typically called an “epidemic” or a “wave” in the media. There were about 350 people killed in 2018 in what are called “mass shootings” (incidents that involve multiple victims).

All of these acts of violence are deplorable tragedies that get a great deal of media attention. But the 12,000 late-term abortions are invisible by comparison. They’re not “rare”. They’re being ignored.

Late term abortions are also not being done only in the so-called “hard cases” of severe fetal disability or to preserve the mother’s life or health. The pro-abortion Guttmacher institute published an academic study in 2013 that concluded this: “data suggest that  most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment”. Rather, the most common reasons for delaying until the third trimester were not recognizing the pregnancy, difficulty in making the decision to abort, disagreeing with the father of the child, not knowing where to get an abortion, difficulty getting to an abortionist, and financial difficulties.

This is not to minimize the struggles of the women who have late-term abortions, or those who are facing the tragedy of adverse diagnoses of their baby. But let’s make sure we’re telling the truth — most late term abortions have nothing to do with “hard cases”, they really are just delayed birth control. And this new law permits that and does nothing to prevent it.

As for whether the RHA legalizes abortion up until birth for pretty much any reason, all you have to know is how the Supreme Court defines “health of the mother”, which is one of the acceptable reasons for a late abortion under the law. It’s defined as “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient” ( Doe v. Bolton, the companion case to Roe v. Wade). There is nothing that wouldn’t fit within that definition, especially since the decision is made between the mother and the doctor who’s been hired to kill the baby.

The idea of a baby being born alive during the course of a late-term abortion has also been derided. But academic studies from Europe have estimated that the number of children who survive an abortion after 23 weeks is almost 10%, and the number rises the later the pregnancy progresses. Since there’s no reason to think that we’re any different from Europe, that means that as many as 1200 babies may be born alive in the United States during the course of a late abortion – babies that could potentially survive with basic medical care.

One study revealed that some babies born after a post-22 week abortion lived as long as 270 minutes, with a median of 66 minutes.  The studies show that such babies are routinely abandoned to die of neglect, often suffering in pain as they struggle to continue living. And this could be going on in hospitals where, right down the hall, heroic efforts are being made to save preemies in the neo-natal intensive care unit.

This is infanticide by any reasonable definition of the word. In the ancient world, it was common practice to kill unwanted children by exposure — leaving them out in the open to die. It is just as much a murder to leave a helpless child to die without ordinary medical care as it is to strangle her or dismember her. One of the great social accomplishments of Christianity in its first few centuries was the eradication of this abhorrent practice. We are reverting to barbarism.

We often read heart-breaking stories of children who die of neglect by their parents. Those stories are usually front-page news and result in calls for drastic legal reforms and interventions. The aborted live babies die in silence, ignored and invisible.

There’s no doubt that we will continue to see op-eds in the Times by the Governor and other pundits, “fact-check” articles put out by major media outlets, and “spin” being  pitched by TV talking heads. But the truth about late-term abortion is out there, and it really is horrific.

The Truth is on Trial

Tuesday, October 9th, 2018

[On October 4, I was honored to receive the Great Defender of Life Award from the Human Life Foundation. The following is the text of my acceptance address.]

As we’ve all seen in recent weeks, one of the greatest challenges of our time is that the truth is on trial. We’ve heard that we live in a post-truth and post-moral society. But nothing could be more dangerous than to fall for the pernicious lie that there is no such thing as objective, eternal moral truth.

We see this all around us. Academia has long peddled the idea that “everything is relative”, and that we can define our own “truth”. In the public square we see the truth subordinated to political ends or distorted by “spin” and ideology. I don’t have to cite specific examples. Just pick up the newspaper.

We can see this in the sufferings of the Catholic Church that I love and serve. We see it especially when we listen to the victims of abuse, as I do. We see what happens when people betray the truth, ignore it, hide it or hide from it. For the longest time we didn’t realize — and in some places we still don’t realize — that the only way to address the problem is with the truth, by living according to it and accepting the consequences. If you want to see the case study of what happens when we fail to uphold the truth, look at the Church.

The denial of truth is certainly not a new phenomenon. But in the communication age, it is spreading like a virus and is having a corrosive effect on society on all levels — from our public institutions down to our own individual lives.

Truth is on trial, and the vulnerable are at risk. In reality, we are all at risk.

My particular focus is on the degradation of the law. Up in the Bronx, at the majestic County Courthouse, you can see inscribed above the north portico: “The administration of justice presents the noblest field for the exercise of human capacity.” That certainly presupposes that there is such a thing as justice, and that there is nobility in serving it.

Does anyone believe this anymore? I do, but I certainly wasn’t taught that in law school, and it’s hard to see it anywhere in our politics or government. It has been replaced by legal positivism — the idea that there is no objective morality, that the law is nothing but an expression of power, special interest, and domination, and that there is no law but man’s law.

You can see the danger. If there is no law but man-made law, then nothing is safe and, as my first-year Contracts professor told us — “It’s all up for grabs”. Pope Benedict warned us about this, “A purely positivistic culture… would be the capitulation of reason, the renunciation of its highest possibilities, and hence a disaster for humanity, with very grave consequences.”

How far we have come from the day, when in the midst of the slavery debate, the great statesman William Seward said “there is a higher law than the Constitution, which regulates our authority over the domain, and devotes it to the same noble purposes.”

Instead we have a Supreme Court that echoes the infamous Dred Scott decision by holding that unborn human beings have no rights that born people are bound to respect. A Court that says that absolute personal autonomy is the highest value, and that everyone can somehow define the meaning of the universe for himself. A Supreme Court Justice who cynically instructed his law clerks that the most important thing to know about the Court is five — the bare majority needed for a decision.  A series of nominees who are forced by the confirmation process to talk about decisions that were wrong the day they were decided – Roe and Casey in particular – and call them “settled law” that have to be respected as “precedent”.  Not much has changed since Frederick Douglass said of the Dred Scott Supreme Court, “[they] can do many things, but [they] cannot change the essential nature of things — making evil good, and good, evil”. But they certainly are still trying, and will continue to try.

We see this in every issue we face in the pro-life movement, where the powerful first devalue, then dehumanize, and then dispose of the weak. For the past few years I’ve spent a lot of time on the issue of assisted suicide. People with disabilities and elderly people are being told their lives have no value because they lack some kind of quality or capability or because they are too costly to maintain. They are being told that they are better off dead. Insurance companies won’t pay for treatment but they will pay for suicide drugs. Doctors become killers, laws put people in danger rather than protecting them, the advocates hide behind phony terms like “medical aid in dying”, they claim that it’s not really “suicide” and they call it “compassionate”. This is what the denial of the truth brings us to.

Yes, the truth is on trial. We are on trial. The stakes are very high. But we have an answer because our movement is at its heart a truth-teller.

One of the fundamental truths we hold is that there is a law that governs us all — the natural law.

It is a universal objective moral order that God wrote in our hearts and in our very nature, but it is discernible by reason also. The truth of this law does not depend on power, identity, feelings, culture, or the whims of courts or legislatures. It is real, eternal, binding on us all and essential for our safety and happiness. All human laws must conform to it, or at least not contradict it, or they are not binding on us, and we must try to correct them. James Wilson, Founding Fathers and one of the first Supreme Court Justices, said “it should always be remembered, that this law, natural or revealed, made for men or for nations, flows from the same divine source: it is the law of God… Human law must rest its authority, ultimately, upon the authority of that law, which is divine”. All the Founders of our nation believed this. Abraham Lincoln believed it. Can you imagine any Supreme Court nominee saying this now?

This higher law stands against any abuse of power, whether by individuals or governments. Under this law, abortion and euthanasia would be unthinkable – nobody can take into their own hands the absolute, unaccountable power over life and death.

The natural law and its objective moral truth are the cure for the pessimism and nihilism of the legal positivists.  It gives us the foundation to uphold what is right and good and most human — polices that embody justice, charity, and the common good, and laws that protect the most vulnerable, and defend religious freedom and human rights.  How much better life would be, if these fundamental truths were embodied in our law. How much more happiness there would be in our world.

This is why our movement is so important. We are the advocates for the weak and vulnerable who are most at risk when the powerful act as if there is no truth, no eternal law, and “it’s all up for grabs”. In the end, we know that we will be judged — as individuals and as a nation — not according to man’s “settled law”, or the Supreme Court’s precedents, but by God’s eternal law.

And we prove these truths by how we love — from the mother vulnerable to abortion, to the single parent struggling to survive, to the disabled person living in loneliness. Including loving those who oppose us. Love is the most powerful argument for the truth.

Our society has lost sight of these truths. But we are here to remind them.

We hold these truths to be self-evident:

  • Every human being has been endowed by God with dignity and rights that cannot be taken away by anyone.
  • The first and foremost of these rights is the right to live.
  • Every unique individual human being has inestimable value that is not dependent on productivity or ability or usefulness or convenience.
  • It is a fundamental injustice to hurt or kill an innocent person no matter their age or condition.
  • The government has a solemn duty to protect and defend everyone.
  • It is a disgraceful dereliction of duty for the government to stand by and do nothing while innocent lives are taken, or, even worse, to encourage it or pay for it.
  • We are all united in one human family — what hurts one hurts us all.
  • Because either everybody’s life matters or nobody’s life matters.

Our challenge is the same it has always been, in every movement to eliminate injustice and oppression — from abolitionism to the civil rights movement to our pro-life movement. Abraham Lincoln once said, “[T]he real issue… is the eternal struggle between these two principles—right and wrong—throughout the world.  They are the two principles that have stood face to face from the beginning of time; and will ever continue to struggle.”

This is our struggle, our trial, in our time – to defend every human life.

We do this because have an unshakable confidence. We are not be discouraged by the powerful forces that oppose us. We will speak the truth with love. We will uphold the law that God has written into every human heart. We will lift up the weak and vulnerable. We will dare to do our duty to them.

And we know that by the grace of God and our hard work, our cause — our glorious cause — will triumph in the end.

The Higher Law and Our True King

Monday, November 27th, 2017

Every so often, there is a remarkable confluence of events that reminds us of God’s will and His activity in our world. In just the past few days, we’ve seen another example of that, one that reminds us of the dire consequences if we continue to forget that God’s law is the highest law and that Christ is our true King.

Last week, a federal District Court judge ruled that a Texas abortion law was unconstitutional. The bill prohibited “dismemberment abortion”, which is defined in stomach-churning terms as:

dismember[ing] the living unborn child and extract[ing] the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of the unborn child’s body to cut or rip the piece from the body.

This horror is known in the medical world as a “D&E” abortion — “dilation and extraction”. Such cold clinical terms are used to avoid acknowledging the reality of what is done to a living human being.

It should go without saying that any body of law that fails to protect human beings from this form of cruel torture — a practice once universally condemned as a crime against humanity when it was done in the death camps — is uncivilized and unworthy of respect or obedience. Sadly, in the Culture of Death that has perverted and desecrated America and our constitutional law, such a barbaric practice is not only legally protected but is held up as one of the highest values in our law. That a prestigious court would grant legal protection to an act of human vivisection is a symptom of a profound cultural and civic sickness.

This sad conclusion is made even clearer by the other event that happened in the last few days. Our liturgical calendar sets aside the last Sunday before Advent as the Solemnity of Christ the King of the Universe. It is worth looking back to the magnificent encyclical letter, Quas Primas, by which Pope Pius XI inaugurated this celebration.

To begin with, the Holy Father stated that “It would be a grave error…to say that Christ has no authority whatever in civil affairs, since, by virtue of the absolute empire over all creatures committed to him by the Father, all things are in his power.” (17)

He then recounted some of the consequences of this failure to recognize the authority of Christ as law-giver, judge, and administrator of all societies:

… the seeds of discord sown far and wide; those bitter enmities and rivalries between nations, which still hinder so much the cause of peace; that insatiable greed which is so often hidden under a pretense of public spirit and patriotism, and gives rise to so many private quarrels; a blind and immoderate selfishness, making men seek nothing but their own comfort and advantage, and measure everything by these; no peace in the home, because men have forgotten or neglect their duty; the unity and stability of the family undermined; society in a word, shaken to its foundations and on the way to ruin. (24)

Does this sound familiar? The Holy Father was writing in 1925, in the aftermath of the devastating Great War, yet he could have been commenting on the catastrophe we see all around us today. He then went on to outline the benefits of recognizing our true King as the source of all law and authority:

When once men recognize, both in private and in public life, that Christ is King, society will at last receive the great blessings of real liberty, well-ordered discipline, peace and harmony… If princes and magistrates duly elected are filled with the persuasion that they rule, not by their own right, but by the mandate and in the place of the Divine King, they will exercise their authority piously and wisely, and they will make laws and administer them, having in view the common good and also the human dignity of their subjects. The result will be a stable peace and tranquillity, for there will be no longer any cause of discontent… Peace and harmony, too, will result; for with the spread and the universal extent of the kingdom of Christ men will become more and more conscious of the link that binds them together, and thus many conflicts will be either prevented entirely or at least their bitterness will be diminished. (19)

It’s not popular to speak in these terms these days, because one is usually accused of being a theocrat or a religious fundamentalist. But it is nothing like that at all. It is a simple recognition that if our society were governed by the laws of God, then we would have true peace and justice. And no horror like a dismemberment abortion would be tolerated or even contemplated. But that is only possible if we recognize the authority of God’s higher law and Jesus Christ as our true King.

Lawless and Arrogant Judges

Wednesday, December 2nd, 2015

I frequently refer to judges as our “Black-Robed Platonic Guardian Rulers on the Courts” because of the consistent record of the modern judiciary to invent new laws based on their own policy preferences.  They often run roughshod over the proper role of courts in a constitutional republic, and particularly over traditional moral values that have been enshrined in law and culture since time immemorial.

They have arrogated to themselves the ultimate authority to decide the laws of our nation, and are unaccountable to anyone for the decisions that they make.  All one needs to do is look at the arrogant and imperious decisions in abortion cases (particularly Planned Parenthood v. Casey) and the redefinition of marriage (Obergefell v. Hodges) for all the evidence you need to see what I’m referring to.

Usually, judges are careful not to let on about what they’re up to.  Very few will actually admit to making momentous decisions based on their own preferences, or to disregarding the plain text and meaning of the Constitution when it stands in the way.  This is part of an implicit social contract in our legal and political establishment — everyone knows what is going on, but few will pull back the curtain.

But every so often, the mask slips.  Take the case of Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit.  Judge Posner is one of the most respected jurists of our generation, a brilliant scholar of law and economics and a public intellectual who has written on a wide range of issues.

He is also an astonishingly arrogant Black-Robed Platonic Guardian Ruler on the Courts.  In two recent public statements (on in the Yale Journal and the other in a speech at Loyola Law School), Judge Posner made some breathtaking statements about his view of the Constitution, the role of judges, and how he makes judicial decisions.  Consider:

I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century.

And again,

Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense.

This, from a judge whose position was created in that very same Constitution in order to decide cases and controversies that arise pursuant to that very same Constitution, and who swore to faithfully discharge his duties under the very same Constitution.

Not that this seems to matter much to Judge Posner.  When asked about his oath of office, this is what he had to say:

The oath is not really to the original constitution, or to the constitution as amended. It is to some body of law created by the Supreme Court. You can forget about the oath. That is not of significance.

When solemn oaths are deemed insignificant, one can only wonder what kind of justice is meted out in his courtroom.  Actually, we don’t have to guess, because Judge Posner has made it clear:

My approach with judging cases is not to worry initially about doctrine, precedent, and all that stuff, but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask “is this blocked by some kind of authoritative precedent of the Supreme Court”? If it is not blocked, I say fine, let’s go with the common sense, sensical solution.

In other words, law with the law left out, nothing more than ad hoc seat-of-the-pants rulings based on his idiosyncratic view of what is common sense on any particular day.  Of course, this should really come as no surprise from a man who has expressed his great admiration for the Friedrich Nietzsche, the moral nihilist and apologist for the powerful dominating the weak.

This kind of cynicism, unfortunately, is the mindset of far too many lawyers and judges in the United States.  When I was at Harvard Law School, the professors openly told us that there was no objective moral content to the law, but that it was just a vehicle for powerful people enacting their political preferences.

A nation ruled by such people is no longer a functioning democracy or republic.   It is a despotic judicial oligarchy.