In August 1972 when I arrived at the University of Iowa campus to start law school, I was searching for truth. One of my first classes was constitutional law where I started thinking maybe there was something true—something solid—to be a firm foundation. I concluded it was the Constitution of the United States. It was the U.S. Constitution which was the measuring standard whether other laws were valid. It was the Constitution that we all could rely upon. At least that is what I came to think before January 22, 1973. I remember that day well.
I was in one of the large stadium-style classrooms at the law school when there was a commotion outside the room. The door was open and one of the professors walked by waving some papers in his hand and shouting with glee and excitement at the top of his voice, “We won! The Supreme Court held that abortions are legal!” Soon thereafter I was able to read a copy of the slip opinion of Roe v. Wade and that was devastating to me. It hit me so hard not because of any moral issue (that part developed later when I became a Christian), but because any thought I had the Constitution was immutable truth was crushed. The opinion in Roe v. Wade was nothing more than a declaration those nine people sitting on the Supreme Court did not even need to pay lip service to the words or intentions of the Constitution. Rather the justices could invent binding legal principles that are not found in the words of the Constitution and certainly were not in the minds of the framers of the Constitution when it was drafted.
Admittedly I was only a first-year law student, but I was able to read and compare the Supreme Court decision in Roe v. Wade with the black and white words of the U.S. Constitution. There simply was no overlap. That decision led to me to conclude there really was no stability in the laws in the United States if nine unelected justices could simply change or add to the U.S. Constitution, or simply ignore other provisions of the U.S. Constitution at their whim. When I saw Roe v. Wade was not supported by the words of the U.S. Constitution, I did not have the knowledge or experience to articulate the matter nearly as well as I later read in the words of Yale law professor and constitutional scholar John Hart Ely, who wrote:
“What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure… It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Similarly, a University of Pennsylvania law professor Kermit Roosevelt, who is in favor of legalized abortion, wrote, “As a constitutional argument Roe is barely coherent. The Court pulled its fundamental right to choose more or less from the constitutional ether.”
In Roe v. Wade, the Court invented “constitutional rights to privacy” and applied that invention to allow a woman to terminate her pregnancy. Writing for the majority, Justice Harry Blackmun acknowledged that while “the Constitution does not explicitly mention any right to privacy,” a number of prior decisions had found “a guarantee of certain areas or zones of privacy.”
It is now 44 years later. Courts continue to include statements in their opinions about “the right of privacy” as if that were anywhere provided for in the Constitution itself. And there is the strange stretch of there being some “penumbra” of rights. Translated, that means the Supreme Court justices will declare anything they decide to be a constitutional “right” by parking it under a “penumbra.” Nonetheless, after decades of practicing law I am actually more encouraged now than ever before that Roe v. Wade will be overturned and that we could see the day when there will be an end to the holocaust of millions of babies being slaughtered through abortion.
When it supports their position or it will help to continue a wrongly created precedent, the proponents of abortion like the legal principle of stare decisis, which is Latin for “let the decision stand.” It means the Court is slow to overturn prior rulings. However, the principle of stare decisis is not legally binding and it is not always enforced. From time to time the U.S. Supreme Court has overturned and reversed its prior decisions. I am hoping this will happen someday with Roe v. Wade. For example, some prior decisions later overturned related to slavery, segregation, child labor laws, and workers’ rights. Most of the people in favor of abortion would say they agree with the principle of stare decisis should not have been applied in those cases. Bottom line: there remains a real possibility a new Supreme Court comprised of more justices who will adhere to the actual Constitution, will overturn Roe v. Wade. That is why states, such as Indiana, need to start acting now
Back when Roe v. Wade was decided, the facts of the case had been poorly presented, the judges deciding the case did not have accurate or complete facts, and the historical claims included in the decision are patently false. There have been tremendous advancements in science over the past 44 year, so that only a dishonest person could say the little baby in the womb is just a blob of matter that does not have a human heart beating. There also has been a resurgence of emphasis upon and recognition of states’ rights. That adds to the prospect of the issue of abortion being returned to the states to decide. So the time is now for Indiana to do what is right and pass the necessary legislation, such as House Bill 1134. By the time the case works its way through any expected challenges, the issue could be very ripe for the rescue of all the babies dying under the scalpel of the wrongly decided Roe v. Wade decision.
It is all too obvious the right to an abortion is in conflict with other laws that Indiana already has on the books which recognize the reality of the baby in the womb. For example, under Indiana Code §16-34-2-1.1, Indiana has already established that, “ human physical life begins when a human ovum is fertilized by a human sperm.” And under the revised Indiana criminal code of 2014, killing an unborn victim (a fetus that has a team viability) is murder, voluntary manslaughter, or involuntary manslaughter, IC section 35-42-1-1; IC 35-42-1-3; and IC 35-42-1-4. Separately, the criminal code allows the State to seek harsher penalties if a murder victim was pregnant (even if pregnant only one minute). That enhancement could add six to 20 years to the convicted murderer’s prison sentence.
Even federal law recognizes the baby in the womb. The Unborn Victims of Violence Act of 2004 (Public Law 108-212) is a United States law which recognizes as a legal victim any “child in utero” who is injured or killed during the commission of a federal crime of violence. The law defines “child in utero” as “a member of the species homo sapiens, at any stage of development, who is carried in the womb.” In other words, the child is recognized from the minute of conception.
That brings me to Indiana House Bill 1134, the “Protection at Conception” bill filed by State Representative Curt Nisly. The bill at the present time cannot be considered further because Representative Ben Smaltz, chairman of the House Public Policy Committee, declared he will not give HB 1134 a hearing. HB 1134 would repeal the statutes authorizing and regulating abortion; finds that human physical life begins when a human ovum is fertilized by a human sperm; asserts a compelling state interest in protecting human physical life from the moment that human physical life begins; redefines “human being” for purposes of the criminal code to conform to the finding that human physical life begins when a human ovum is fertilized by a human sperm; and makes other conforming changes.
One of the reasons given by Rep. Smaltz and others in leadership opposing HB 1134 is the claim, if passed, the law would just buy a lawsuit and it would end up costing a huge amount of money in attorney’s fees to the ACLU or other pro-abortion groups. That is lame. In the USA we have what is called the “American Rule.” This rule provides each party to litigation is responsible to pay its own attorney’s fees unless there is a provision or agreement otherwise by statute or a contract that allows the assessment of attorney’s fees against the other party. The relevant statute is the 1976 Civil Rights Attorney Fee Act (42 USC, Section 1988) which was a follow-up to the Civil Rights Act of 1964 (PL 88-352) which was designed to assist people in racially-oriented civil rights cases who could not afford a lawyer. Congress’ clear intent was if poor people fighting racial discrimination won their case, they would be awarded their attorney fees to be paid by the losing party.
The ACLU has increasingly exploited these statutes which were originally designed to assist in the private enforcement against racial discrimination—for bald attacks on religion and other liberties. First, if Rep. Smaltz simply assumes “the case would be lost so why try,” then no Indiana persons even has the chance of winning (which then would avoid paying attorney’s fees to the other side)—and the unborn Indiana victims will continue to be killed in violation of the fundamental constitutional liberty of life itself. Second, we have solid legal arguments in a case about abortion is not about discrimination or about religion. So if there is no statute granting attorney’s fees that actually applies, then there is no real danger of paying attorney’s fees to the other side.
HB 1134 is about the due process of the unborn victims, and the basic of all laws—that murder is illegal. Thankfully, some in Congress continue to work to stop the abuses by the ACLU and others, who have wrongfully, but successfully used the threat of payment of large attorney’s fees as a terror to intimidate citizens from asserting their constitutional liberties and rights. It is time to stand up for constitutional rights regardless those threats. HB 1134 needs to have its hearing. It’s time has come; so very much is in the balance.
Paul Refior lives in Warsaw, Indiana, and has practiced law for over 40 years.