News came over the weekend of a state district court being overruled by a higher court.  Ho hum, no news there, one would think, a routine occurrence…except this concerned stem cell research, and that is always newsworthy.

 

The state was Missouri, and what was at issue was whether the description by the secretary of state of a ballot initiative (a description that would appear on the ballot, and hence, might influence a voter) was misleading.  The lower court said yes, and re-wrote the description in what it believed was neutral language.  But the appellate court – by a 2 to 1 vote - overruled that court, ordering the secretary of state to change merely one word – from stating that the ballot initiative would “repeal the current ban on human cloning” to “change the current ban on human cloning.”  The losers will likely appeal, and round the judicial merry-go-round we go, endlessly it seems.  It would be amusing but for the fact that the court’s decision means the initiative will not be on the ballot in the fall and Missouri voters will be deprived of their right to decide the matter.

 

To understand the current dispute, it is necessary to recall previous developments in this controversy.

 

In 2006, there was a well-funded effort to pass a bill, titled, the “Stem Cell Research and Cures Initiative” (the “Initiative”). The Stowers family, who established the Stowers (research) Institute in Missouri, where much good, ethical, scientific research takes place, poured over $15,000,000 into supporting the Initiative.  That was sad because it was a misleading bill.

 

For instance, the Initiative defined “cloning” as occurring when there is implantation in a woman’s womb.  But that is wrong.  Cloning, or somatic cell nuclear transfer (the two terms are synonyms), is a technique with one aim: the creation of a living genetic duplicate of the same species.  Thus, human cloning produces a human being, while sheep cloning produces Dolly.  It does not matter where the living clone is located.  Whether in Scotland or Missouri, whether in a laboratory or in a womb, artificial or animal or human, “cloning” has occurred whenever a living genetic duplicate comes into existence, not when it is implanted in a womb.  A womb is like a safe-house.  You may need to hide there to live, but you were a human being before you went inside.

 

Likewise, the Initiative was misleading about “stem cell research.”  Adult stem cell research (“ASCR”), at the time of the Initiative, had delivered over seventy successful human treatments, involving thousands of individual patients, while embryonic stem cell research (“ESCR”) had not delivered one (and has not done so to this day).  There were (and are today) hundreds of FDA-approved trials in process with ASCR, but, again, none with ESCR.  In other words, ESCR made the promise, but it’s ASCR that has redeemed the pledge.  Nevertheless, the Initiative swept all this under the carpet.  By making it legally impossible to “discourage” ESCR in Missouri, it ensured that Missourian’s tax dollars would go to ESCR and away from proven ASCR treatments and research.  If the Missouri legislature found ESCR was not promising and that the best way to help sick people was to fund ASCR, the state constitution would, after the passage of the Initiative, forbid them from doing anything about it.

 

And that is what happened – the Initiative passed, but just barely.  In a very close vote, where the pro-Initiative forces once lead by over thirty points, the ballot initiative passed by a vote of 1,077,276 to 1,028,495. 

 

Since then, anti-Initiative forces in Missouri have been trying to pass their own referendum in order to enact a ban on all human cloning, whether the clone is implanted in a womb or not.  However, Missouri Secretary of State, Robin Carnahan, decided to describe\ on the ballot their language as follows: “Shall the Missouri Constitution be amended to repeal the current ban on human cloning or attempted cloning, and to limit Missouri patients’ access to stem cell research, therapies and cures approved by voters in November 2006…” 

 

Missourians seeking to overturn the Initiative found this language characterizing their own initiative to be seriously misleading (for instance, since there are no therapies and cures from ESCR, how could banning cloning “limit Missouri patients’ access to…therapies and cures”?).  They took the matter to court.  On February 20^th, Cole County Circuit Judge Patricia Joyce ruled that the existing ballot language was “insufficient and unfair.”  She re-wrote the description to say that the ban includes “prohibiting human cloning that is conducted by creating a human embryo at any stage from the one-cell stage forward; prohibiting expenditure of taxpayer dollars on research or experimentation on human cloning.”

 

It is, frankly, hard to see how she can be wrong, despite what the appellate court said.  The description she supplied makes clear the point at issue – what a clone is, i.e., a genetic duplicate from the first cell stage onward.  The original Initiative had obscured that fact by focusing on implantation.  Many voters were misled – in a very close vote – into thinking they were banning cloning, on creating clones, while all the Initiative did was to ban its implantation.    By requiring the change of only one word, from “repeal” to “change,” while continuing to allow the underlying law to be described as “the current ban on human cloning,” the appellate court permitted the deception of Missouri citizens to continue.

What will eventually happen in Missouri no one can know. However, I do know that until we are honest about the science, we will never reach a just – or even honest – resolution of the issues.    

In many respects, it has been a quiet term on the Supreme Court.  However, on March 25, the Supreme Court announced its decision in Medellin v. Texas.  It is a complicated case, but an intriguing one, for lawyers at least, and one with significant ramifications.

The facts of the case concerned whether 51 Mexican nationals arrested, tried and convicted in the were denied their rights because they were not informed of rights under the Vienna Convention.  The Vienna Convention is a treaty to which the United States is a party.  It provides, in essence, that a country that detains a foreign national shall (a) inform the diplomatic representatives of that person’s country that he has been detained, and (b) inform the detainee that he has a right to assistance therefrom.  Those provisions were not followed in this case.

After failing on one habeas corpus petition, , who had been convicted of murder, filed another habeas corpus petition based upon the failure to supply Vienna Convention information.  However, law governing challenges to criminal convictions (“state default rules”) did not permit the filing of such a second habeas petition, and it was dismissed.  

In the meantime, the International Court of Justice (“ICJ”), which sits in in the , ruled that the had violated its obligations under the Vienna Convention on the ground set out above.  It held that the was obligated to review the convictions of the 51 Mexican nationals, including , regardless of state default rules.  Subsequently, the U.S. Supreme Court held that, contrary to the ICJ judgment, the Vienna Convention did not preclude the application of state default rules. Thereupon, President George Bush issued a memorandum stating that the would discharge its obligations under the Vienna Convention by having state courts give effect to the decision of the ICJ.

The issue in the Medellin case thus became whether a state court (in this instance, Texas) must apply the decision of the ICJ as a “binding” interpretation of the Vienna Convention that would displace inconsistent laws of that state, and/or must defer to the President’s memorandum to the same effect.

The Supreme Court held that was not required to do so on either ground.

It may seem odd that a decision of a foreign court (ICJ) was involved at all.  We think of foreign courts as dealing with foreign law.  However, our Constitution says that treaties are also “the supreme law of the land”.  Along with federal laws and the Constitution itself, they displace or “overturn” or pre-empt inconsistent state laws.  Thus, some body must determine the meaning of a treaty that is operative in the   Signers of the treaty (including the ) agreed, in effect, this would be the ICJ.     

So it might seem the result would be straight-forward, i.e., since the ICJ determined the meaning of the Vienna Convention and the agreed that the ICJ was entitled to do so, the should apply the ICJ’s interpretation in the However, that line of reasoning ignores the fact that treaties have what we might call a horizontal dimension and a vertical dimension.  On the horizontal is the relation between sovereign states.  What that means is this: one nation can complain against another, since each is a party; they are bound on the horizontal dimension, i.e., the as a nation state is bound by the ICJ decision.  However, there is a second question: do, and if so how, the terms of the treaty apply within the state itself?  That is the vertical dimension. 

With non-self-executing treaties, the US Congress would have to enact laws “executing” or putting-into-effect the provisions of the treaty.  (If it failed to do so, the might be in breach of obligations under the Vienna Convention, but that would not alter the laws in

However, some treaties are “self-executing,” that is, they immediately become law in all parts of a country which ratifies the treaty; they do not require the government to pass laws implementing them.  The big question in was how to determine whether a treaty was self-executing or not. 

The Supreme Court held that to be self-executing, a treaty must say so clearly.  Since the Vienna Convention did not clearly say it was, it was not.  A demand by the President to the states (including ) that it be treated as if it were was, thus, without effect.

The treaty-making power, under our Constitution, resides with the President and the Senate.  The effect of the decision is to require that matters be clear.  If Congress or the President wants to change the law by ratifying a treaty, they will have to tell the American people they intend to do so.  The people are then on notice.  They can tell their Senate representatives not to ratify such a treaty, or to ratify it. 

Neither the President nor the Congress should be able to change law by stealth, as it were, through the ratification of a treaty, unless they have the courage to convince the American people the law should be changed.  If the Congress or the President thinks we need a treaty on global warming, for example, they should be obligated – in conformity with democratic principles – to let the people know if and how doing so will change US laws.  If the people agree that it is a good idea, they will urge their Senators to ratify the self-executing treaty.  Likewise, if the treaty, Congress and the President have only deferred their obligation.  Congress will have to consider passing laws to implement the treaty.  Once again, they will have to convince the people that doing so is a good idea.

This is all good for democracy.  It ensures the does not enter into international treaty obligations that its citizens do not support.  US citizens, in turn, need to be on their toes.  Since treaties are the supreme law of the land, they should consider carefully which ones the should ratify.  I believe the effect of is that they will be given an opportunity to do just that.

        Yesterday, a news story appeared about the striking down of an abortion-related law in The law, the Parental Notice of Abortion Act, has had a long history in the courts.  As soon as it was passed in 1984, it was challenged in court, and enjoined.  Challenges to the injunction and defenses of it have proceeded a pace over the years.  Last Friday, a federal district court judge refused to vacate the injunction, claiming the law does not give a minor the Constitutionally-required option for by-passing the statute. 

           This is an odd case, particularly after the Supreme Court’s opinion last year in Gonsales v. Carhart.  In that case, the Court recognized a “significant” state interest in protecting unborn human life, which it said had been ignored in Supreme Court jurisprudence in the years following 1992’s Casey v. Planned Parenthood.  The question in the Gonsales case focused upon the Congressionally-passed ban on partial-birth abortion, but since the case was a 5-to-4 opinion, authored by Anthony Kennedy, everyone recognized it had significance beyond the narrow issue there involved.  How would the Court decide future cases?  What kind of issues fell within the significant state interest?

            A significant aspect of Gonsales was that it concerned a “facial,” or pre-enforcement, challenge to the statute.  The Supreme Court held that given the state’s significant interest in unborn human life, there was no reason to distort the normal requirement of an as-applied challenge.  In other words, the entire statute would not be enjoined because there was an allegation that one part might be unconstitutional.  If particular provisions raised problems, they would form the basis of suits challenging the constitutionality of those provisions.  Thus, the decision by the federal court in to stop the entire parental notice statue from going into effect seems ill-conceived.  No doubt the facts in the particular case are complicated, but it hardly seems to align with the principles of Gonsales.   

           The case puts one in mind of another recent Supreme Court case, Ayotte v. Planned Parenthood.   At issue in that case was the same question as in the case: may a state provide that, regarding an unemancipated (or unmarried) minor girl living at home, parental notice was required.  (Note well that this did not require parental consent before an abortion could take place.  Parental notice simply ensures that the parents are involved in the girl’s decision; it is still hers to make.)  The Court eventually remanded the case for further proceedings.  I suggest it would be hard for most Americans to be convinced, in that case or this one, that the Constitution requires that a minor girl should be free to get an abortion without her parents even being advised of it beforehand, particularly where, as in the Illinois case, the statute provides for exceptions for emergencies or where an adult family member is allegedly the father, and, further, provides for judicial by-pass where the court in question judges it in the girl’s best interests.  In fact, in my opinion, such statutes will easily survive Supreme Court scrutiny in the future.

            I think most Americans see decisions like the one in as evidence of judicial imperialism.  That is, they see the decision for what it is – judges taking out of the hands of the people the right to decide difficult, disputed social issues.  Doing so is judicial usurpation of the legislative function.  While the most pressing, socially disruptive contemporary example is the judicially-created “right to abortion” in Doe v. Bolton and Roe v. Wade, it is not the only example.  In fact, perhaps the most infamous example of all was the Supreme Court’s decision in the Dred Scott case, mandating that slaves be treated as property in the free states of the Few today would say the Constitution mandated any such outcome, as they will one day say the same for Roe and Doe.  This week was the anniversary of the Dred Scott decision, reminding us of the perils of judicial usurpation.

           Democracy is a difficult, trying business.  But it is a form of government built upon the recognition of the equality of all human beings, and, thus, their right to participate in government.  Democracy is not without faults, and it can fail.  Today, in fact, marked the anniversary of one of its spectacular failures - Hitler’s election in However, democracy - or, rather, a republican form of government – is ’s system of government.  It is government of checks and balances, and limited powers.  It is a system in which the courts have a modest role.  It is one in which the people, through their elected representatives, settle the tough questions.  If the people of decide that a minor girl living at home must notify her parents before she has an abortion, no federal court has the right to make a substantive decision to the contrary.  Yet, the effect of Roe and Doe is that this is precisely what federal courts do every day regarding abortion.  Hopefully, Gonsales means such days are numbered.

I used to work on Capitol Hill in D.C.  My office was on the Senate side.  It faced west.

Every January I would see a huge group of people come streaming up the hill on Constitution Avenue, and turn right, heading toward the Supreme Court and passing in front of my office window.  I was not pro-life in those days, but I was always impressed that the overwhelming majority participating in the March for Life were young people. 

This year marked the 35^th March for Life.  It is held yearly in DC on the anniversary of the Supreme Court’s decisions in Roe v. Wade and Doe v. Bolton, creating a federal constitutional right to abortion. 

I know that many of my readers will argue with the world “creating”; they will assert that the proper word is “recognized,” that what the Supreme Court did was to recognize a right anchored in the Constitution, that the Court did not create anything.

However, I submit that they are wrong.  Very few legal scholars, liberal or conservative, maintain that a right to abortion is to be found in the current text of the Constitution.  I further submit that this point is easily proved and illustrated by this fact: the Supreme Court cannot find the text – the actual words - in which this “right” is located; first the Court asserted in was in the implied “privacy” right, in later cases it asserted it was in the “liberty” right, and, in the dissent in the partial-birth abortion case last year, it was alleged to be in the “equal protection” right.

I understand that many, many Americans believe there should be a right to abortion, protected under law.  My challenge to them is this: then it is up to you to put it there; it is up to you to have the Constitution amended to provide for such a right.  That is the business of democracy.  On disputed social issues such as abortion, where there is deep disagreement, it is up to the people to resolve the issue.  Usually that will be through the people’s elected representatives in state and/or federal legislatures.  It will not be through courts imposing a “constitutional right” which cannot even be located in the constitutional text.

And democracy is what the March for Life is about.  It is likely the longest sustained protest movement in American history. And it is not dying out. For those of you who do not live in DC, I can tell you it is a huge crowd, approaching, if not exceeding, 100,000.  And this year, my impression as I marched, was that the crowd was much bigger than normal.  This is not a movement that is going away.

But that is a challenge my pro-choice friends should be prepared to meet.  As we all know, if the Supreme Court ever overturns or reverses Roe, it will not “outlaw” abortion.  Rather it will say that the Constitution does not provide a right to abortion.  Then, the issue will shift to the states to decide.  The battle over the issue will then be waged in each state’s legislature.  If abortion is a necessary right, then surely pro-choice advocates can convince their fellow Americans and legislatures to provide for it.

Of course, once the issue is “out of the courts,” it is an issue of persuasion.  Pro-choice Americans have a case to make.  But so do those who march every January, in the rain, snow or cold.  They ultimately persuaded me.  And I believe they will ultimately persuade America.

As noted in Part I (November’s column), I believe the European Court of Human Rights (“ECHR”) - whose decisions were cited, inter alia, by our Supreme Court in 2003 in Lawrence v. Texas - is increasingly involved in politically-driven decision-making. If this is correct, it means these decisions are not reliable as a basis for knowing what European law is. Thus, for that and other reasons (as explained in my November and October columns), our Supreme Court should place no reliance upon them. 

As I discussed in Part I, an examination of decisions such as Patton and Vo reveals that when someone seeks to restrict or penalize abortion by invoking provisions of the European Convention on Human Rights (the “Convention”), the ECHR has refused to apply those arguably applicable provisions.   However, in other cases, the ECHR did apply those provisions. Let us examine some cases from this latter group to find out why.

In the 1992 case Open Door Counseling and Dublin Well Woman v. Ireland, the ECHR held that restricting information concerning abortion services outside of Ireland violated article 10 of the Convention, which guarantees the right to free expression. Thus, Ireland, and all parties to the Convention, must allow for the distribution of information regarding legal abortion services that are available in other states. This time the ECHR did not pay deference to the principle of subsidiarity, as is traditionally done (for reasons explained in Part I). Note: this involved a case where someone sought to extend “abortion rights.”

A very important, recent case is the 2007 decision Tysiac v. Poland.  It, too, involves extending “abortion rights.”

In 2000, Alicja Tysiac, sought an abortion under Poland’s health exception. She suffered from myopia and believed the pregnancy would exacerbate the degenerative eye disease. Tysiac visited several specialists, none of whom would certify that her health was threatened by the pregnancy to meet the Polish health exception for abortion, and she subsequently gave birth to her child. After the delivery, her eyesight continued to worsen, but three ophthalmologists and a panel of the medical experts concluded that “the applicant’s pregnancies and deliveries had not affected the deterioration of her eyesight.”

The ECHR acknowledged it was not its function “to question the doctors’ clinical judgment as regards the seriousness of the applicant’s condition.” However, contradicting itself and even though Poland’s law requires a doctor’s certification, the Court said it was “sufficient to note that the applicant feared that the pregnancy and delivery might further endanger her eyesight.” The Court held that, in a circumstance where a woman disagreed with the determination of her doctor(s), a government must establish a procedure for her “to be heard in person and to have her views considered.”

The Court dismissed Polish legal criteria for determining the legitimacy of a woman’s claim for a health exception, declaring, “Once the legislature decides to allow abortion, it must not structure its legal framework in a way that would limit real possibilities to obtain it.” Specifically, it found Poland had violated Article 8 (Right to Respect for Private and Family Life) of the European Convention – precisely the same article under which it refused to find a right to limit abortion in Paton. In Tysiac, the court held Poland failed in its “positive obligations to safeguard the applicant’s right to respect for her private life in the context of a controversy as to whether she was entitled to a therapeutic abortion.”

Judge Borrego Borrego sharply criticized the majority opinion in his dissent for usurping legislative power and running counter to its own case-law in its approach and conclusions. He noted - 

The judgment goes too far as it contains indications to the Polish authorities concerning “the implementation of legislation specifying the conditions governing access to a lawful abortion”. The Court appears to be proposing that the High Contracting Party, Poland, join those states that have adopted a more permissive approach with regard to abortion. It must be stressed that “certain State Parties” referred to in paragraph 123 [of the majority opinion] allow “abortion on demand” until eighteen weeks of pregnancy. Is this the law that the Court is laying down to Poland?

When considered along with the ECHR’s decision in Open Door,Tysiac signals a willingness of the ECHR to abandon settled principles of jurisprudence requiring it to defer to national states on “social issues” (which it readily applies when the question is that of restricting “abortion rights”) when the issue is the extension of “a right to abortion”. 

Thus, it should be clear that the ECHR is moving in an increasingly activist direction on abortion issues, abandoning the limited role its founders intended for it and deciding cases in a politically-driven manner. Consequently, its decisions should not be relied upon by our courts.

 

Though I promised in my last column to conclude a two-part series on judicial activism in Europe this month, I must postpone that until January. The reason is that an important development in bioethics demands our attention. 

A couple of weeks ago, in independent studies, researchers Jamie Thomson of the University of Wisconsin and Shinya Yamanaka of KyotoUniversity (Japan) announced an important development regarding stem cell research. Writing separately in the journals, Science and Cell, respectively, Thomson and Yamanaka announced that they had been able to “re-program” somatic (body) cells into a pluripotent state. In other words, scientists were able to cause these mature cells to “de-differentiate” into their original embryonic state. The cells were denoted “induced pluripotent stem cells” (hereafter, “IPS cells”). As such they are fully as pluripotent (ie, able to differentiate into mature cells of every kind) as are embryonic stem cells derived from the destruction of human embryos.  

This discovery has at least two implications. First, embryos need not be destroyed to produce embryonic stem cells. Thus, there is no need for those who wish to pursue embryonic stem cell research to destroy human embryos, or for their supporters to call for it.     

As with embryonic stem cells, these IPS cells will still require further research before they can be used in human trials. There is the problem, for instance, that such cells can propagate wildly, leading to tumor formation (as has been observed in animal trials). It is still the case that adult stem cell research is the only kind of stem cell research that has produced successful treatments in human beings (over 73 conditions treated, and thousands of human beings helped – see our web page for papers summarizing this, www.frc.org). While there was some initial concern that IPS cells might be more prone to cancer formation, a subsequent paper by Yamanaka in the journal, Nature Biotechnology, has shown this is not the case. 

It is also interesting that while attempts to perfect cloning continue, the announcement of success in primate cloning, which many thought impossible, did not meet with universal acclaim.   Shoukhrat Mitalipov of Oregon National PrimateResearchCenter presented his research to the International Society for Stem Cell Research in Cairns, Australia last month. In addition to successful primate cloning, he was able to extract stem cells from some of the cloned embryos and managed to encourage these embryonic cells to develop into mature heart cells and brain neurons.  Yet prominent researchers, among them Rudolph Jaenisch and Iain Wilmot, were discouraged. Separately, they remarked that the success rate was so low that it was not a viable option. Indeed, in a stunning development, Wilmot, the first to perfect mammalian cloning with Dolly the Sheep, noted he was abandoning cloning to focus on IPS cell research. 

As indicated, the reason scientists have pursued cloning was to produce an embryo from which they could extract embryonic stem cells that could then be used in research to treat diseases in the donor of the genetic material of the clone. (In cloning, one removes the nucleus from an egg cell, replaces it with the genetic material from the donor’s somatic cell, and produces a clone of the donor.) Now, however, as Wilmot indicated, there is simply no reason to pursue cloning. The stem cells one would have derived through this procedure can now be derived by the IPS procedure. 

We should pause to recall the recommendation of a president’s council on bioethics, not that of George W. Bush, but of Bill Clinton. In 1999, his National Bioethics Advisory Commission, in its report on “Ethical Issues in Human Stem Cell Research,” stated:  “In our judgment, the derivation of stem cells from embryos remaining following infertility treatments is justifiable only if no less morally problematic alternatives are available for advancing the research … The claim that there are alternatives to using stem cells derived from embryos is not, at the present time, supported scientifically. We recognize, however, that this is a matter that must be revisited continually as the demonstration of science advances.”    

Now, there is a proven “alternative to using stem cells derived from embryos,” ie, IPS cells. Further, there is no need to pursue human cloning for the same reason. Whatever our political or ethical views generally speaking, can we not unite around this principle from Clinton’s NBAC and end “the stem cell wars”? Surely that is what reason requires.

 

 

As I noted in a prior column, the U.S. Supreme Court’s decision in Lawrence v. Texas, in 2003, stirred up a firestorm. The reason was that the majority relied, in part, on European precedent, including decisions from the European Court of Human Rights (“ECHR”), to decide a case under American law. One of those ECHR decisions I criticized in my prior column. There have, in fact, been other decisions from ECHR on disputed social issues that underline the inconsistent, politically-driven nature of ECHR jurisprudence in those areas. That, in turn, should serve as a warning to the American people – and to American courts – that reliance on ECHR decisions in American cases is a very bad idea. In this column and the next, I will look in some detail at these ECHR decisions.  

Both the European Court of Human Rights and its predecessor, the European Commission (the “Commission”), have weighed in on the legal effect of national laws relating to abortion. They have done so in order to ascertain whether such laws conflict with rights secured under the European Convention on Human Rights (the “Convention”). Until recently, the jurisprudence of the ECHR followed the common European understanding that great deference is to be given to national states in regulating social issues (such as abortion and marriage).  In line with this philosophy, the ECHR neither recognized a right of a woman to obtain an abortion nor a right to life of an unborn child, leaving it to national states to decide how to regulate abortion. Let me give some examples of ECHR jurisprudence in this area on this point.   

In 1981, the Commission heard the case Paton v United Kingdom. This case involved a father who attempted to secure an injunction, under his right to his “family life,” to prevent his wife from having an abortion. He sought this injunction under Article 8 of the Convention. Article 8 provides: “Everyone has the right to respect for his private and family life, his home and his correspondence.” The Commission decided Article 8 did not provide the husband with a right to an injunction, thus relegating him to his national courts to resolve the matter.    

Another case worth examination is Vo v. France, decided in 2004, Vo, a Vietnamese woman living in France, brought suit to have the right to life of her unborn child recognized under Article 2 of the Convention. Article 2 provides: “Everyone’s right to life shall be protected.” Vo sued because, during a visit to the hospital, she was mistaken for a woman who had requested an abortion, and a doctor aborted her child.   

The ECHR refused to extend the right to life to Vo’s unborn child. The ECHR was “convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention…” Again, it deferred to national courts to resolve the matter.  

Vo and Paton each seem to exemplify the traditional jurisprudential stance of the ECHR to abortion issues, neither recognizing the “right to life” of the unborn or “a woman’s right” to an abortion, thereby leaving the issue to the member states to decide for themselves. However, I would like to suggest that this is not actually the case. To see why, it is necessary to examine these cases in a wider framework of ECHR jurisprudence on social issues.   

It is highly significant, I believe, that both Patton and Vo were cases in which someone sought to restrict or penalize abortion. In each case, the ECHR refused to apply arguably applicable provisions of its governing document (see above for those provisions). Not surprisingly, these same provisions were involved in other cases involving abortion; yet, in those cases, the ECHR did apply Convention articles to decide the case. What was the difference? I suggest it is that those cases (to be examined in my next column) involved the extension of “abortion rights”, not their limitation, This, in turn, points us to what, I believe, is an emerging “principle” of ECHR jurisprudence, a principle wholly inconsistent with the traditional European deference to national courts on social issues – where abortion is concerned, the ECHR will “apply” Convention articles to extend the “right,” but will not apply them so as to limit it. Thus, it appears the ECHR is moving in an increasingly activist direction on abortion issues. However, it has no European mandate to do so, and is, in fact, abandoning the limited role its founders intended for it. Thus, it is reasonable for Americans to reject any recognition of or reliance upon such decisions in U.S. courts. (As noted, I will return to this issue in my next column, when I will examine ECHR’s decisions where it used the same Convention articles to extend “abortion rights” that it refused to apply in the cases discussed above to limit them.) 

 

There have been some strange legal developments in the United Kingdom that, I believe, should worry any thoughtful person.  They center on decisions by a regulatory agency and by a Parliamentary committee in favor of the creation of human/animal hybrids.

In November 2006, two different groups of researchers applied to the Human Fertilization and Embryology Authority (HFEA) for research licenses to create human/animal hybrids.  The research in question would use non-human animal eggs (or ova or oocytes, ie, female sex cells).  It would remove the animal nucleus (which contains the DNA) and replace it with a nucleus from a human being (this is the somatic cell nuclear transfer, or cloning, procedure).  Using animal eggs eliminates certain ethical and financial constraints presented in mass egg procurement from women (a process both difficult and dangerous).  However, though the DNA of the animal nucleus is removed, the egg’s cytoplasm – the material surrounding the nucleus – also contains DNA.  Thus, creating a living being through this procedure creates a hybrid, which is part human and part animal. 

In considering this issue, the HFEA proposed to distinguish five kinds of hybrid research: cytoplasmic hybrid embryo research (the creation of “cybrids,” through the procedure described immediately above); hybrid embryo research (the mixing of animal and human gametes); human chimera embryo research (human embryos with animal cells added to them in early development); animal chimera embryo research (animal embryos with human cells added); and transgenic human embryo research (human embryos with animal genes inserted into them during early development).  I say “proposed” to do so because each of these procedures creates a living being that is part animal and part human.  It is unclear why it should make any ethical difference which procedure is employed.

However, on September 5, the HFEA, while not endorsing alternatives two through five above, did endorse alternative one - "Having looked at all the evidence the Authority has decided that there is no fundamental reason to prevent cytoplasmic hybrid research.”  Surely, this is an exceptional claim: most people would consider such research to be monstrous. In the strict sense, it creates what the dictionary defines as a monster – “an imaginary or legendary creature, such as a centaur or Harpy, that combines parts from various animal or human forms” – except that it would now no longer be imaginary.

As the HFEA considered the matter, a Joint Committee of the British Parliament published a report.  At issue in particular was the scope of the HFEA’s jurisdiction in inter-species research.  It was unclear, for example, if the HFEA has the power to grant licenses for hybrid research —that is whether hybrids are covered by the HFE Act of 1990 or the Animals Act of 1986.  The Joint Committee found distinctions between hybrids and cybrids made by the licensing authority of the HFEA to be “arbitrary.”  Given the contentious nature of inter-species experimentation, the Joint Committee concluded that the question should be decided by the people, through their elected representatives, “in a free vote in both Houses of Parliament.”  The full Parliament will consider the question this fall.

Thus, the bottom line is this: either through Parliamentary amendment to the HFEA or, should Parliament fail to act, through the existing HFEA interpretation of the law, human/animal hybrids will be created in , and soon.  This raises acute questions of ethics.  The supporters reply with two points: there is nothing to worry about because the hybrids will be destroyed, and they aren’t true human/animal hybrids anyway.  Neither reply is persuasive. 

How does the fact that these beings will be destroyed answer the question whether they should be created in the first place?  On a purely pragmatic level, what can possibly guarantee that all of them will, in fact, be destroyed?  Many eco-systems are bedeviled with foreign plants and animals that, we were assured, would never escape into the environment.  Remember, the killer bees?  African bees transported to escaped, mated with the native bees, and created a hybrid that is deadly to human beings.  This is a nice parallel to what we are considering here.

Second, mitochondrial DNA does matter.  It does influence development of the organism, albeit in ways not wholly understood.  Thus, even with “cybrids,” there will be a true mix of the animal and the human.  It will be a being like none before it.  What gives us the right to create it?

Surely this should cause us to pause in our headlong rush to embrace novelty, satisfy every curiosity, and pursue every imaginable form of scientific research.  We need to think hard about this.  Shouldn’t science be subjected to the ethical restraints, and plain common sense, that govern us in every walk of life?  Why should we accept that if it can be done scientifically, we should allow it to be done?       

News came at the end of August that was startling – marriage, we discovered, is an irrational institution. Or at least, marriage as always understood in American history, that is, marriage between one man and one woman, is. (Remember that outlawing polygamy was a condition for admitting Utah into the Union.) Judge Robert Hanson of Iowa ruled, in Varnum v. Brien, that state law defining marriage as historically and traditionally understood violated the Iowa constitution and irrationally discriminated against homosexual couples seeking to marry.

Though, as noted, the decision did not rely upon the provisions of the United States constitution, it relied upon parallel provisions of the Iowa constitution, as well as upon federal jurisprudence about how such provisions should be interpreted. For instance, what does “equal protection” mean? Hanson looked,   among other things, to an opinion of Justice Sandra Day O’Connor of the U.S. Supreme Court in Lawrence v. Texas (from 2003). In doing so, however, Hanson illustrated several serious flaws in his own legal reasoning. First, O’Connor’s opinion was a concurrence; the case was decided on a different legal theory; since a majority of the court backed the other theory (“due process”), O’Connor’s views are legally irrelevant, that is, she did not speak for “the Court” in its understanding of what “equal protection” means. Second, Lawrence had nothing to do with homosexual marriage. Rather, it concerned whether a state statute could selectively penalize homosexual conduct. In other words, the statute prohibited certain activities when homosexuals engaged in them, but not when other people did. The Court held this was constitutionally prohibited (under “due process”). The Court expressly noted that it was not deciding the question whether homosexuals had a constitutional right to marry (though the Court noted in passing that homosexuals could try to convince their fellow citizens to grant such a right).

Another fundamental flaw with Hanson’s opinion is his analogy to racial discrimination. Here is his reasoning: the Supreme Court in Loving v. Virginia showed that state laws prohibiting persons of the opposite race from marrying was irrational (and violated the U.S. constitution); for the same reasons, Iowa’s law prohibiting homosexual persons from marrying is also irrational (and violates Iowa’s constitution). But the two situations are not comparable at all. The race of a person is, indeed, irrelevant as to whether that person can satisfy the requirements for a person to enter into a valid marriage; hence, laws prohibiting him from doing so are “discriminatory” because they are “irrational.” However, no homosexuals of the same sex can satisfy the requirements of marriage, i.e., that one be a man and one be a woman. By holding otherwise, Hanson was saying that it is utterly without foundation in reason to define marriage as requiring one man and one woman. 

Hanson said: “Only same-sex couples cannot marry.” (Page 59) This nicely puts it, and illustrates why his opinion is clearly erroneous. Individuals, not couples or groups, have rights. No individual in Iowa is being denied the right to marry. Rather, individuals are being told (by the law) that there are limitations on whom they can marry, i.e., on the human combinations that will be recognized as “marriage.” There is nothing irrational about this. Four individuals cannot all marry one another; a brother cannot marry a sister; a child cannot marry anyone. All these restrictions on human choice are the consequence of the fact that “marriage,” like all words, has a meaning in America, i.e., the union of one man and one woman. 

From the press reports, this ruling came as a surprise to many Iowans. Some politicians railed that “groups” would exploit this ruling for “political” ends. Such complaints are unconvincing. Remember, in Lawrence, the U.S. Supreme Court said homosexuals were, of course, free to try to convince their fellow citizens to grant them the right to marry, i.e., to convince them to change the definition of marriage. But that is not what happened in Iowa. There the state legislature had passed laws prohibiting discrimination against homosexuals in various settings, but it had also passed a law defining “marriage” as historically and traditionally understood. In effect, Judge Hanson sought to take the matter out of the hands of the people, of the citizens of Iowa. The public debate envisioned by Lawrence was, thus, short-circuited. It seems quite likely that the Iowa supreme court will overturn this badly reasoned decision in short order. Still, however much Hanson wished to take the matter from the people, he has achieved just the opposite; he has energized efforts to amend the Iowaconstitution to define marriage as between one man and one woman. Rulings like Hanson’s illustrate the problem with judicial activists. The only remedy to such activism is, in fact, politics. The people must reclaim their right to rule themselves. 

[Note: This article was written by William Saunders, Human Rights Counsel for FRC.]

On August 2, the Senate Judiciary Committee voted to approve the nomination of Leslie Southwick to the United States Court of Appeals for the 5h Circuit.  Southwick has served for eleven years on the Mississippi state appellate court.  He has been an adjunct professor of law at Mississippi College of Law for over ten years.  He was honored by the Mississippi state bar with its judicial excellence award in 2004.   The American Bar Association found him to be “well-qualified” to serve as a federal judge.  (He was approved by the Senate Judiciary Committee for a seat on the federal district court in 2006; however, when he did not receive a vote on the Senate floor before Congress adjourned, President Bush nominated him to the circuit court when the new Congress convened.)

Yet, his nomination was held up in the Senate Judiciary Committee for months.  Senator Leahy, chairman of the Committee, reported that all Democrats on the Committee would vote against him, and he would, therefore, not be reported to the floor, for a vote by the entire Senate.  On Thursday, Senators Mitch McConnell, Republican leader in the Senate, and Arlen Specter, ranking minority (Republican) member of the Senate Judiciary Committee, introduced a resolution in the Senate calling for a vote by the full Senate on this nominee.  Subsequently, one Democrat, Senator Dianne Feinstein of California, voted in favor of Southwick’s nomination.  Thus he received sufficient votes, and was reported out of committee to the Senate floor, where he should receive a “yes” or “no” vote.  

It must be noted that some opponents of Judge Southwick are calling for a filibuster against him, to prevent him coming up for a vote before the full Senate.  This is highly innovative and unusual.  The Democratic Party is in the majority; thus, the call is for the Democratic Party to filibuster itself.  For, obviously, there is a straightforward, ordinary way by which the Democratic Party, and individual senators, could ensure that Southwick does not become a member of the U.S. Court of Appeals for the 5th Circuit, that is, they could vote against him.  Since they have more than 50 votes, that would defeat his nomination.  There is no reason for the Democrats to filibuster themselves, so that Southwick does not even come up for a vote.  Or is there?

The fact is that Judge Southwick is well-qualified, as the ABA said, to be a federal appellate court judge.  The opposition to him is political – his opponents do not think he would be the kind of judge they want.  Fair enough, you might say; after all, politics is politics; the Democrats are under no obligation to approve him.  And you would be correct, so far as it goes.  But your point ignores this: the Democrats can deny him a seat on the court by voting against him.  But the problem appears to be that votes are recorded.  In other words, if the Democratic Party rejects his nomination, the vote of each Senator will be recorded, as it is with every vote.  It will then be “fair game” for any senator’s constituents to ask him or her, “What were your reasons for voting against Judge Southwick?”  If the Senator does not have good reasons, that constituent may decide to vote for someone else for the Senate in the next election.

Now that is “politics.”  It holds elected officials responsible for their votes.  This is no surprise; it is what democracy is all about – and it would be ludicrous for Democratic officials to hide from the consequences of a vote by invoking a “majority filibuster,” which is an oxymoron if there ever was one.

The problem is that some members of the Democratic Party appear to confuse the role of the judge with that of the legislator.  A legislator is elected to make decisions on behalf of his constituents. He or she serves with other elected representatives, many of whom will have contrary views on various issues.  Thus, the first legislator will have to figure out ways, through compromise and negotiation, to achieve the best he or she can for what the constituents want.  Again, as Churchill notes, it is not pretty, but it is democracy, a form of government most people judge to be the best achievable by fallible human beings.  

However, those who want judges to decide disputed policy issues are confusing the judge’s role.  A judge is to be an impartial arbiter, not a partisan.  It is hard to believe anyone would want otherwise, for what one judge gives you (or “your side”) today, a different judge could take away tomorrow.  I would think the vast majority of Americans want judges to decide their case without partisanship.

Still, as noted, many lobbying groups and some Democratic members of Congress appear to want judges to replace legislators.  I think that is wrong, as a matter of constitutional interpretation, US history, and good policy.  But perhaps I am wrong.  If so, it is up to those who support “activist judges” to publicly make their case, cast their vote, and take the consequences.  That is what the holdup with the nomination of Judge Southwick has been all about – obstruction without accountability.  Now that he has finally been moved to the Senate floor for a vote, we will see if the proponents of judicial activism will try the same strategy there.  If they do, the American people will, in the upcoming elections, hold them accountable.  That’s politics, and that, at least, is what the Framers intended.

[Note: This article was written by William Saunders, Human Rights Counsel for FRC.]

Yesterday, the Supreme Court closed its 2006/07 term by announcing several 5-4 decisions.  In some, Justice Samuel Alito voted with a so-called “conservative” majority.  Does that mean Alito is a “bad” justice, and, even, that his confirmation a year ago was a mistake, or that Congress failed in its duty when it gave its “advice and consent” to the President’s nomination?

The answer, I would suggest, is clearly “no” to all these questions.  To understand why, let’s return to Alito’s confirmation hearings before the Senate Judiciary Committee.

The most telling testimony, in my opinion, came from the American Bar Association and, later, from a panel of judges who serve with Alito on the Sixth Circuit Court of Appeals.  No one is better placed to judge his suitability to sit on the Supreme Court that than those who have served with him as judges on the Sixth Circuit. Such people have seen him in action, as a judge, in all contexts, on the bench and at private judicial conferences.  What did these judges say?

One of them, Judge Becker, wisely noted that there are four criteria to consider – temperament, integrity, intellect, and approach to the law.  How did Becker, who has served with Alito as a judge for 15 years, evaluate him by these standards?

As to temperament, he said “Sam Alito is a wonderful human being. He's gentle, considerate, unfailingly polite, decent, kind, patient and generous. He's modest and self-effacing. He shuns praise.”

What did Becker have to say on the other 3 criteria?  On integrity: “Sam Alito is a soul of honor.”  On intellect: “Judge Alito's intellect is of a very high order. He's brilliant, he's highly analytical and meticulous and careful in his comments and his written work.”  On judicial philosophy: “He's a real judge deciding each case on the facts and the law, not on his personal views, whatever they may be.”

Becker’s colleagues agreed unanimously with him regarding the qualifications of Judge Alito.  Please go to CSPN’s archives and see for yourself.  Remember – they have served for years and years with him (and some have known him, and worked with him in other contexts, for more than 30 years). 

Also, highly relevant, was the investigation by the American Bar Association.  Please read carefully what the ABA panel reported to the Senate Judiciary Committee –


Let me repeat the last sentence from the ABA’s testimony: “His integrity, his professional competence and his judicial temperament are, indeed, found to be of the highest standard.”  Could anyone reasonably want any other kind of Supreme Court Justice? 

Yet, Alito was barely passed out of the Judiciary Committee, and 42 Senators voted against him on the Senate floor.  How can one explain that, given the praise heaped upon him by the (not-conservative) ABA and by his fellow 6th Circuit judges?  In one word, “politics,” and I submit it is very unwise politics at that.  It reflects a desire to accomplish policy through the courts (thus, requiring a potential justice to hold the ‘right” views on particular issues and voting against him if he doesn’t).  However our constitution gives the policy-making responsibility to the legislature, not the courts.  When courts step in to decide disputed social issues, they leave them, ironically, unsettled.  In the legislatures, people of opposing views will argue, compromise and horse-trade.  They will arrive at a policy position that most of the people accept.  It isn’t pretty, but it’s democracy.  Trying to short-circuit it by turning judges into policymakers is unwise…and untrue to America’s founding principles.

[Note: This article was written by William Saunders, Human Rights Counsel for FRC.]

During the first six years of his presidency, George W. Bush vetoed one bill, and one bill only.   On July 19, 2006, President Bush vetoed a bill passed by Congress to overturn restrictions on the federal funding of human embryonic stem cell research.  (The President announced in August 2001 that no federal funding would be available for embryonic stem cell research where the stem cells had been derived through the destruction of a human embryo after the date of the President’s announcement.) 

 Within the week, the President will issue another veto; it, too, will be of a bill to overturn his restrictions on the federal funding of human embryonic stem cell research.  His veto will be sustained, as was the first, by the Congress.  In other words, the policy will not change.

 However, it is obvious that this issue will continue bedeviling our politics.  It will rise again.  What, and how, should we think about it?
 
 To attempt to answer that, I would like to consider a “consensus statement” of “an international consortium” concerning “stem cells, ethics and law” that was released about a year ago.  As described in the Washington Post, this international consortium, the Hinxton Group, consisted of “60 scientists, doctors, philosophers, lawyers, scientific journal editors, federal regulators and others from 14 countries who met in Hinxton, England, to consider ‘ethically acceptable norms’ of stem cell research.”
 
The first seven numbered paragraphs consist of (in the statement’s words) “principles [that] should govern the ethical and legal regulation and oversight of stem cell and related research and its clinical applications.”  What are these?  The chief principles are as follows: “Stem cell research should seek to minimize harm, and any risk of harm should be commensurate with expected overall benefit;” “Law makers should be circumspect when regulating science,” “while scientists and clinicians have a responsibility to obey the law.”
 
The consensus statement then goes on to give eight numbered paragraphs about “forward-looking strategies to foster the scientific and ethical integrity of research in a global context.”  One is, “for purposes of oversight, regulations and applications to ethics review boards and funding agencies, etc, human material donors in the context of human ESC research ought to be treated as human research subjects.”
 
The consensus statement concludes with four numbered paragraphs concerning the additional “work to be done.”  It opines that, “insofar as donors of human materials are treated as human subjects, many of the ethical issues raised by human embryonic stem cell research can be adequately addressed through existing international codes of ethics and policy documents”.  
 
Would this consensus statement be a good guide in our domestic stem cell wars? 
 
There are some good principles in the document.  Certainly, everyone concerned with bioethics, so far as I am aware, would agree that lawmakers should not rush to regulate science, and that scientists should obey the law.
 
However, only those who adhere to a utilitarian ethic would agree that “risk of harm [in stem cell research] should be commensurate with expected overall benefit.”  For, if embryonic stem cell research is immoral (a word not used in the consensus statement), no amount of “benefit” can justify it.

And this is precisely where the Hinxton statement falls fatally short of the mark.  It sets out to determine how “humankind” can best “realiz[e] the benefits of stem cell research in an ethically acceptable manner,” but fails to make the fundamental factual distinction upon which ethics and law must be based.  There are two kinds of “stem cell” research – that which utilizes stem cells taken from embryos, and that which does not.  The second kind of research is called “adult” or “alternative” stem cell research, and it obtains stem cells from human beings who have been born, umbilical cord blood, and placentas.  It poses no ethical problems because it is not risky to the subject.
 
The other kind of stem cell research takes stem cells from embryos or their equivalents.  Using current technology, the only way to “extract” embryonic stem cells is to “disaggregate” – to pull apart – the embryo, which kills it.  Since it is a scientific fact that the human embryo is a human being (a full member of the species Homo sapiens – just consult an embryology textbook) the long-established standards of the Nuremberg Code apply.  Principle 5 states that no research is to be undertaken on a human subject if death will result.  No other person’s consent is sufficient to permit this.  If the “consensus statement” means this, then it is correct – existing “international standards” are sufficient to make it clear that destroying embryonic human beings is wrong and cannot be justified by any benefit derived or hoped for. 
 
Who are the “donors of human material” that the statement mentions, who are to be treated as human research subjects?  Again, if it means the embryo itself, then treating it as a “human research subject” means it must not be killed.  But if that were so, why does the statement, as mentioned, speak of “commensurate benefits” and “new international standards”? 
 
In fact, if one looks a bit closer at the statement, one sees that “donors of human materials must provide informed consent”.  However, as noted, no embryo can consent, and no one may consent for it to be killed.  So it looks like the statement is built upon the denial that the human embryo is a human being.  If so, the statement is fatally and fundamentally flawed. 
 
In the end, the consensus statement seems to plead with us to accept the unacceptable – to develop international ethical standards to do what no system of ethics can make acceptable – the immoral use and destruction of human beings.  Until a consensus is reached that every human being – no matter how young or small, no matter where located – is of equal dignity to, and deserves to treated with the same respect as, other human beings, we must resist unethical scientific research.  That is precisely what President Bush will do when he issues his veto in the next few days.

[Note: This article was written by William Saunders, Human Rights Counsel for FRC.]

What is one to make of the Supreme Court’s 5-to-4 decision on April 18 in Gonzales v. Carhart, in which it upheld the Congressional statute banning partial-birth abortion? 

Some observers criticized Roberts and Alito for deviating from their testimony during last year’s confirmation hearings before the Senate Judiciary Committee.  This criticism asserted that they had pledged to be bound by precedent, but had ignored a prior Supreme Court case, Stenberg v. Carhart (2000).  But as will be discussed below, the whole question is what prior precedent of the Supreme Court means.   And, of course, no Supreme Court justice has ever agreed to be bound by cases that were originally wrongly decided.  Any nominee who made such a pledge would be unfit for the job.  The job of a justice is to decide what the law demands, and that includes existing precedent, but the Constitution itself is the supreme law and all other law must be consistent with it.  Thus, a court decision (or statute) inconsistent with the Constitution should be overturned.  (Some observers also criticized all 5 justices in the majority because they are Catholics, suggesting they made their decision because of their religious faith.  Anyone who made that charge should be ashamed.  No one is disqualified in America from public office because of their faith.  And no one can read the Court’s opinion and find any traces of “imposing Catholicism.”  In truth, such attacks have no place in our democracy.  If someone disagrees with the Court’s opinion, it is up to them to present a convincing challenge to its legal reasoning.)

Justice Anthony Kennedy wrote the majority opinion.  Justice Kennedy had been the co-author of the “plurality opinion” in an important Supreme Court case about abortion, Planned Parenthood v. Casey, decided fifteen years earlier in 1992.  In that case, the votes of the justices who authored the plurality opinion (Kennedy, David Souter and Sandra Day O’Connor) had been critical to upholding a “right” to abortion.  Since there was no majority vote in that case, it was necessary to divine what the three authors of the “plurality” opinion (who would provide the “swing vote” in subsequent abortion cases) intended Casey to mean.  However in the succeeding years, there was disagreement, even at the Supreme Court, as to its meaning.

Therefore, the meaning of Casey was central to the Court’s opinion in Gonzales v. Carhart, and Justice Kennedy was careful to explicate its meaning.  Kennedy noted that “a central premise of [Casey’s] holding” was “that the government has a legitimate and substantial interest in preserving and promoting fetal life”.  Kennedy noted that Casey had found that the Court’s decisions following the first abortion case, Roe v. Wade (1973), had “undervalued” the State’s interest in fetal life.  Thus, the Court in this case, Gonzales v. Carhart, “must determine whether the [Partial Birth Abortion Ban] Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child.”

This marks, I think, perhaps the most important aspect of Gonzales v. Carhart.  Once again the Supreme Court is insisting that the state has a legitimate interest in protecting fetal life.  This interest is real and substantive (so significant that it requires, in many circumstances, what Kennedy called a “balance” to be struck with the right to an abortion itself).  It cannot be disregarded by the courts.  As Kennedy noted, the “government may use its voice and its regulatory authority to show its profound respect for the life within the woman.”  For the first time, there is a majority of the Court that recognizes that Casey requires the courts to recognize this.   Thus, to the extent that Stenberg suggested otherwise, it is overruled.

To be sure, Gonzales v. Carhart is in some respects very limited.  It surely did not, for instance, hold that there is no right to abortion.  It did affirm that the “trimester” approach of Roe has been replaced by a pre- and post-viability test.  However, significantly, it permitted governmental regulation (i.e., the PBA ban) during the pre-viability period.

The Court did not hold that the abortion right can, at any stage, be eliminated, but it did hold that the right was qualified.  This is a commonplace of the law usually.  But when the issue is abortion, a “distortion” is routinely introduced into the law by the Supreme Court, bending ordinary rules to give greater protection to the right to an abortion than is accorded to other constitutional rights.  Kennedy recognized one situation where the Court had done so – statutory construction.  Ordinarily courts will construe a statute so as to find it to be constitutional if possible, in recognition that it is the legislature’s job to make laws (which, in turn, recognizes the sovereignty of the people, through their elected representatives).  However, it “is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion…The Court at times employed an antagonistic ‘canon of construction…’”  However, “Casey put this novel statutory approach to rest.”  Kennedy, and the majority in Gonzales v. Carhart, refused to resurrect a special rule of statutory construction for abortion cases, privileging such cases about all others.  Hopefully, this presages a re-thinking of abortion jurisprudence by the Court to bring it in line with normal legal rules.   

By William Saunders

Sunday night, March 20, 2007, the Congress of the United States passed and President Bush signed into law, S. 686, “an act for the relief of Theresa Marie Schiavo”.  This was well in keeping with Senate procedures – the Senate passes many “private relief bills” each session.  It is an old tradition, dating to 1817.  But a political furor erupted over this bill. Why? 

The reason was that this bill involved Terri Schiavo, the disabled woman in Florida whose husband sought removal of her feeding tubes. The husband argued that this was what Terri wanted, and the Florida guardianship court agreed.  Many others, however, disagreed, including Terri’s parents and family.  They waged a determined effort to have the husband replaced as guardian.  (S. 686 gave them the right to sue in federal courts about the denial of Terri’s civil rights.)  They had resisted each court-ordered withdrawal of the feeding tubes.  Litigation had already proceeded on various fronts in Florida courts, but failed.  The Florida legislature passed what was known as “Terri’s Law” to add another layer of review to the case, but that law was invalidated by the Florida courts.  So, finally, the U.S. Congress stepped in and passed S. 686.

Think about it – are there other areas in which we as a nation have recognized that it is appropriate for the Congress (and the federal courts) to “involve themselves” in happenings in the states.  One that should come easily to mind is, civil rights.  In that area, Congress passed laws to remedy substantial injustices that were occurring in the states.  How was this case different?

It really wasn’t.  There are several obvious ways in which the Congress properly had jurisdiction.  First, no one may be deprived of “life” under the 14th Amendment “without due process”.  (There is certainly “state action” in this case since the court, contrary to Florida law, appointed itself as “guardian” as to the life-or-death decision, and “ordered” Terri’s husband to remove the feeding tube.)

 Further, as noted, Terri was not dying; she was, rather, a disabled woman.  The Americans with Disabilities Act was passed to prevent discrimination against handicapped Americans.  Surely the most egregious form of “discrimination” is to subject the handicapped to lethal violence.  Third, habeas corpus is always available for those convicted of capital crimes.  Once state court remedies are exhausted, a prisoner may appeal to the federal courts.  Surely, it is reasonable for Congress to decide that an innocent woman, as much as a convicted felon, has the right to have additional review before action is taken that will end her life.  There are, in fact, reasons to question the actions of the Florida guardianship court, as noted above.  In other words, there are good reasons to believe that Terri had not received justice from the Florida courts.

On one level, the Schiavo case was about whether a disabled woman may be starved to death in circumstances which suggest conflicts of interest and improper conduct without being afforded a disinterested review by a federal court.  Readers likely know the troubling circumstances – a husband as guardian who, since Terri’s injury, fathered 2 children with another woman; who waited until 9 years after her injury to argue that she had stated she wanted to die in these conditions; and who only began to argue for her “right to die” after receiving a monetary award in a law suit and, apparently, failing to use the funds for the purpose for which they were awarded (Terri’s rehabilitation).

On another level the case was, and remains, about us and our society.  All Terri’s husband could claim she had said was that, if she fell into a coma she did not want to be a “burden”.  Was she a burden?  Certainly not to her parents and family (and many others) who are offering to care for her and to bear all the costs.  Thus, if she had been allowed to live, it would not have imposed a burden on her husband.  On a deep level, the issue is whether we as a society see someone like Terri Schiavo as a burden.  Will we offer our help and assistance?  Will we create legal and medical structures that insure that no handicapped person ever feels that their life is a burden to others?  Will we value all lives as equal to all others?  On the anniversary of Terri’s death, these are questions we should consider. 

by Bill Saunders, FRC legal counsel

As candidates begin preparation for the 2008 election season, people of faith will once again face the perennial admonition from liberal groups that the IRS requires "conservative" churches to be apolitical.

This message is dutifully repeated by liberal-leaning media in states where "the conservative vote" might make a difference. Media outlets invariably run articles and broadcasts noting how carefully the IRS will be watching churches this cycle.

And as a result of this perceived threat from the IRS, many pastors find themselves in a chilling environment, discouraged from addressing the moral questions involved in contemporary politics.

This should not be the case. It was for freedom of religion, not freedom from religion that the founders fought. That's why the Alliance Defense Fund and the Family Research Council released a letter to thousands of pastors in to set the record straight.

Pastors must realize that they have the right to guide their congregations through the difficult moral questions that face our society, such as abortion, stem-cell research/cloning and the meaning of marriage. If this means urging support for specific legislation or referenda that a given church believes to be good for the community, there is nothing in federal tax law preventing a pastor from saying so.

Here are the facts:

• Federal tax law allows a church to spend at least 5 percent of its total resources on legislative lobbying and advocacy efforts;
• churches can distribute voter guides, register voters and hold candidate forums;
• pastors can preach about legislation and policy from the pulpit, and urge their congregations to support or oppose particular proposals.

What churches cannot do is endorse specific candidates or parties.

These facts, however, are continually lost in media coverage and activist allegations.

Take South Dakota, for example. In South Dakota, there is a referendum on the ballot to ban abortion. Many church leaders in South Dakota hold strong opinions on the legislation and could easily wind up influencing the final vote in November.

Not surprisingly, the Sioux Falls Argus Leader has run multiple articles on churches and the IRS. One article, from June 6, warned of "stricter enforcement [by the IRS] of rules against religious groups endorsing or intervening in election campaigns."

The piece goes on to describe five recent complaints against churches and church-like groups throughout the country. Never mind that each complaint involves the endorsement of specific candidates and that candidate endorsement is the basis of the "stricter enforcement" by the IRS.

Ignoring these critical facts, the Argus Leader quickly points to the abortion referendum, as if churches have no right to speak out on that issue. That was not the only article the paper ran on the subject.

Given the clear legality of supporting - or opposing - the abortion referendum from the pulpit, what purpose can such articles have, other than to intimidate people of faith from speaking their piece on an issue dear to the hearts of many Christians?

Clergy must not be frightened into silence. How much poorer off would we be had Thomas Becket not denounced the policies of King Henry, or John Witherspoon not denounced those of King George?

What if the preachers during the Second Great Awakening had remained silent on the issue of slavery? What if the Rev. Martin Luther King Jr. had decided that politics and the pulpit ought not to mix?

The role of churches in public political discourse has always been an important one. It is vital that pastors know they are completely within their rights to play their invaluable role in our democratic processes - in spite of what liberal scaremongers in government and media might tell them.