We the People Act(HR 3893 IH)March 4, 2004 To limit the jurisdiction of the Federal courts, and for other purposes. Mr. PAUL (for himself and Mr. BARTLETT of Maryland) introduced the bill in the 108th Congress and needs to be introduced in the 109th Congress.

Saturday, December 4

How Not To Overturn Roe v. Wade

Justice Scalia writes: "My difference with Roe v. Wade is a legal rather than a moral one: I do not believe . . . that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would—and could in good conscience—vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter."

….the Justices do not understand the nature of abortion, and that if they are forced to confront the scientific and medical facts about the conception and development of the unborn child, they will be compelled to reconsider Roe v. Wade and hold that the unborn child is a constitutional person. To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will.
That premise is mistaken. Every member of the Court understands what an abortion is.

The Court understands that the purpose and effect of an abortion is to kill an unborn (and, in some instances, a partially born) child.

….women need abortion to be legal in order for them to be full and equal members of American society. It is that judgment, and not any misunderstanding of what happens in an abortion, that is the source of our present predicament, as even a casual perusal of the Court’s opinion in Casey reaffirming Roe v. Wade would disclose.

….it should be clear that no member of the Court—past or present—believes that the unborn child is a "person," as that term is used in
Section 1 of the Fourteenth Amendment.

Seventeen justices have sat on abortion cases since and including Roe, and not one has ever stated that the unborn child is a constitutional person….Dissenting in Roe, Justice Rehnquist stated that "the drafters did not intend to have the Fourteenth Amendment withdraw from the states the power to legislate with respect to this matter [i.e., abortion]." Dissenting in both Roe and Doe v. Bolton, the companion case to Roe, Justice White stated that "this issue [i.e., abortion], for the most part, should be left with the people and the political processes the people have devised to govern their affairs."

But there is more than silence to indicate the Justices’ views. Dissenting in Casey, Justice Antonin Scalia stated, "The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so." This statement, in an opinion that Chief Justice Rehnquist, Justice White, and Justice Clarence Thomas joined, quite obviously is not compatible with a recognition of personhood. And in dissenting from the Court’s decision to strike down the Nebraska partial-birth abortion ban, Chief Justice Rehnquist and Justices Scalia and Thomas
once more urged that the issue of abortion be returned to the states.

In his brief dissent in Carhart, Justice Scalia stated that "the Court should return this matter to the people—where the Constitution, by its silence on the subject, left it—and let them decide, state by state, whether this practice should be allowed." Justice Thomas, writing for himself, Chief Justice Rehnquist, and Justice Scalia, began his lengthy dissent by stating: "Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother."

Entirely apart from the issue of personhood, there is little basis for believing that any of the Justices would accept the argument that the Supreme Court (or any court) is qualified to state when human life begins. Dissenting in Casey, Justice Scalia, joined by the Chief Justice and Justices White and Thomas, wrote that the question of when human life begins is not "a legal matter" capable of resolution by a court, but, instead, is "a value judgment" that may be made only by the political branches of government. In his concurring opinion in Ohio v. Akron Center for Reproductive Health (1990), Justice Scalia said that the determination of when human life begins is a question not capable of judicial resolution and instead must be left to the political process where compromise and accommodation of divergent views is possible. This theme—that the resolution of the abortion question should be left to the political branches of government—has been a leitmotif of Justice Scalia’s abortion opinions.

Nothing in Roe, properly understood, forbids New Jersey or any other state from imposing civil liability and/or criminal sanctions on anyone who causes injury to or the death of an unborn child (outside the context of abortion).

Paul Benjamin Linton is an attorney who specializes in pro-life litigation and legislative consulting, and has served as General Counsel of Americans United for Life. -How Not To Overturn Roe v. Wade - 2002 First Things 127 (November 2002): 15-16.

Life-Protecting Judicial Limitation Act of 2003 (Introduced in House)

To provide that the inferior courts of the United States do not have jurisdiction to hear abortion-related cases.


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