Supreme Court Clear Cuts State Health and Safety Protections for Women

You were in the workshop, using your router on wood that you intended to incorporate in a lovely accent table in your formal living room. As so many of us have done, you failed to wear safety glasses or goggles. You bent low to follow the line that your router bit cut into the wood. Then, suddenly, you are clawing at the painful wooden bits that spewed onto your face. Unfortunately, some of the wood chaff got in your eyes.

Rinsing with water did not resolve your problem. You and your spouse hope into the car and head to the local freestanding urgent care center. After registering and waiting, you wait for about 30 minutes. When a staffer at the clinic calls you back, you confront an ugly scene in your treatment room.

Filth: Gosnell's way of practice

Ceiling tiles and insulation have fallen.

A leaking ceiling drips into a plastic bin.

In the corner near that counter a bucket of water sits, with an electric water heater suspended in the bucket. You look inside the bucket and notice a small collection of medical surgical instruments.

The tiny, tawdry, filthy treatment room seems spacious by comparison with the hallway leading from the waiting room to it. In that hallway, you could

Water heating in a bucket to "sterilize"
Gosnell's Surgical Instruments

not walk side by side with your spouse.

When the doctor finally enters the treatment room, he looks a great deal like a cross between Mel, the short order cook from the old TV series “Alice,” and a Bugs Bunny caricature of a witch doctor. You find it odd that he is smoking while he examines you. Because he has not donned gloves, you observe the dark crust under his fingernails. He coughs spasmodically, and you remember hoping that the cough evidences a longtime habit of smoking, rather than some communicable illness.

Who in their right mind would allow the doctor to take a pair of tweezers from the counter, after digging them out from under the ceiling tiles and insulation, and begin removing wood flecks from their eye?

Cramped Procedure Room at Gosnell House of Horrors

Maybe cautious living, up until the woodworking accident, contributed to your longevity? Perhaps you are the sort to research a doctor on the internet, and to look for evidences of medical licensing, and health and safety inspections, before even considering allowing something important, like your self, to undergo such an intimate kind of touch by a complete stranger?

Got Germs? Gosnell apparently set a low bar
for environmental concern in the office

The fact is that, in Texas, if you sought a surgical procedure of the kind that can be done on an outpatient basis at a freestanding clinic, you would not have confronted the conditions I described above. Instead, because of a regime of health and safety laws and regulations, the center described above would be closed. 

Texas requires a clean environment for the provision of such care. Here's the basic regulatory framework for ambulatory surgical centers in Texas:

(a) The ambulatory surgical center (ASC) shall have the necessary personnel, equipment, and procedures to handle medical emergencies that may arise in connection with services sought or provided. At a minimum, the ASC shall provide:

  (1) periodic instruction of all personnel in the proper use of safety, emergency, and fire-extinguishing equipment;

  (2) procedures, including adequate surveillance techniques, that minimize sources and transmission of infections;

  (3) a comprehensive emergency plan to address internal and external emergencies, including:

    (A) a provision for the safe evacuation of patients during an internal emergency, especially patients who have difficulty walking;

    (B) a provision for the most efficient use of available facilities and services during an external emergency; and

    (C) a requirement for at least four drills a year of the internal emergency plan.

(b) Hazards that might lead to slipping, falling, electrical shock, burns, poisoning, or other trauma shall be eliminated.

(c) Facilities shall be clean and properly maintained.

(d) An emergency call system shall be provided and readily accessible to staff and patients in all areas of the facility.

(e) All equipment, including emergency equipment, shall be properly maintained and periodically tested.

(f) There shall be a system for the proper identification, management, handling, transport, treatment, and disposition of hazardous materials and wastes whether solid, liquid, or gas.

  (1) This system shall include, but is not limited to, infectious, radioactive, chemical, and physical hazards.

  (2) The system shall provide for the protection of patients, staff, and the environment.

(g) An ambulatory surgical center shall meet the requirements set forth by the department in §§1.131 et seq. of this title (relating to Definition, Treatment, and Disposition of Special Waste from Health Care-Related Facilities).

(h) Sufficient space, equipment, and supplies shall be provided to perform the volume of work with optimal accuracy, precision, efficiency, and safety in the laboratory and x-ray. The ASC shall furnish equipment for basic diagnostic purposes, depending on the extent of services provided. Dressing area(s) shall be required, depending on services provided, with convenient access to toilets, and may be shared with patient changing/preoperative rooms

Yes, it is stunning, isn't it? 

All these outpatient clinic categories are subject to
health and safety regulations ... but not abortion businesses

As you read these requirements, knowing that a plastic surgeon enhancing your nose must meet these requirements but an abortionist terminating a pregnancy need not do so, you realize just how far afield the justices of the Supreme Court have wandered.

Just as with basic health and safety, Texas requires basic, frankly commonsense, minimum standards for construction. For example, the architectural review conducted by the State’s Health and Human Services Commission would insure that internal hallways leading to treatment rooms would be wide enough to accommodate a stretcher so that, if an emergency arose, a patient could be retrieved by emergency personnel and quickly transported to a hospital for possibly life-saving care.

In case you were not aware of the facts, most of the nightmare of filth and danger described in the opening paragraphs above are not the fruit of a vivid imagination.

Instead, those “hypotheticals” are drawn from the very real conditions of a Pennsylvania abortion business run by Doctor Kermit Gosnell. Dr. Gosnell, you may recall, is spending the last of his days in prison. His role in murdering children born alive and causing women to die and/or suffer permanent scarring is the story of the filth, disorder, and dangers in the paragraphs above. In fact, the pictures accompanying the paragraphs above were taken from the evidence in his trial.

Today, five black-robed magicians testified in unison that the States have no legitimate interest – not in the lives, safety, and health of women that may seek or obtain abortions – in preventing other Kermit Gosnells from maintaining medical houses of horrors across Texas. Ass. Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined Ass. Justice Breyer in a decision striking down two provisions of Texas law enacted by the Texas Legislature in 2013. The case was Whole Women's Health vs. Hellerstadt.

In 2013, Texas passed new statutory requirements for abortion services in Texas. Two requirements became the subject of a lawsuit that led to today’s Supreme Court decision. Texas amended its health laws to require that physicians performing surgical abortions have “admitting privileges” at hospital within the vicinity of their practice. Texas also extended public health and safety regulations that already applied to all other outpatient surgical businesses.

No! The temerity of Texas!

Ambulatory surgical centers that participate in Medicare, for example, are required by federal law and regulations to meet a similar admissions standard. “To further protect patient safety, ASCs are also required to have an effective means of transferring patients to a hospital for additional care in the event an emergency occurs.Written guidelines outlining arrangements for ambulance services and transfer of medical information are mandatory. An ASC must have a written transfer agreement with a local hospital, or all physicians performing surgery in the ASC must have admitting privileges at the designated hospital.”

The answer is obvious:

None. 

Each of the justices is the product of remarkably similar LEGAL training. None of the current justices holds joint degrees in law and medicine. None of them possesses any relevant training or specialized experience that suggests that their collective judgment about patient health and safety and standards of medical care is trustworthy at all, let alone more trustworthy than a legislative body to which the determination of such questions is reserved by the federalism embodied in our Constitution.

In the same way that requiring admitting privileges is eminently reasonable and well within the public health and safety regulatory power of States, requiring abortion businesses that provide abortion services in the office to meet basic requirements of sanitation, environment, safety, and health is also eminently reasonable. In fact, virtually every State (outside the context of abortion businesses) requires ambulatory surgical centers to meet such basic requirements.

So what about the idea of requiring that doctors that perform so-called “ambulatory surgery” to have admitting privileges at a nearby hospital? Was that some outsized and burdensome hurdle invented by rabidly “anti-choice” representatives in the Texas Legislature?

In fact, the American College of Surgeons adopted a set of ten “core principles” for office based surgery. The fourth of the core principles states: “Core Principle #4 – Physicians performing office-based surgery must have admitting privileges at a nearby hospital, a transfer agreement with another physician who has admitting privileges at a nearby hospital, or maintain an emergency transfer agreement with a nearby hospital.” You can find that Core Principle on the American College of Surgeons in its “Statement on Patient Safety Principles for Office-Based Surgery Utilizing Moderate Sedation/Analgesia, Deep Sedation/Analgesia, or General Anesthesia.”

California was one of the first State’s to liberalize abortion restrictions before the decision in Roe v. Wade. The State government and bureaucracy are hardly bastions of pro-life sentiment. California thinks that surgeons that perform outpatient surgery should have hospital admitting privileges. In fact, accreditation depends on ambulatory surgical centers “a written transfer agreement with a local accredited or licensed acute care hospital” and on only permitting “surgery only by a licensee who has admitting privileges at a local accredited or licensed acute care hospital, with the exception that licensees who may be precluded from having admitting privileges by their professional classification”

Even Consumer Reports considers hospital admitting privileges an important consideration in selecting a doctor. In their online report, “How to Find a Good Doctor,” Consumer Reports offers a collection of nine factors to consider in selecting a doctor. The second criteria (only after insurance coverage), Consumer Reports advises, “Your choice of doctor can determine which hospital you go to, if needed, so find out where the doctor has admitting privileges.”

Now, with respect to admitting privileges, the question must be asked: With what specialized training and experience in medical care, and in patient health and safety, are the justices of the Supreme Court invested? How is that judicial body better situated than a State’s legislature to make the necessary kinds of judgments that are, necessarily, legislative in character, as with crafting statutes setting standards for medical care?

Yet the same dusky solons that know better than the medical community on the topic of hospital admitting privileges concluded that it knows better than Texas about the need for health and safety regulations of abortion businesses.

We live in a time when laws being made at the Supreme Court is so commonplace that few outside the pro-life community are likely to be perturbed at today’s decision. 

Still, when you go to get the wood scraps scraped from your eye, you will expect a reasonable standard of care, a modicum of cleanliness above men’s gas station restrooms, and available specialized care if your treatment results in an emerging medical crisis. And because all you are doing is having wood scraps removed, you’ll find your legitimate expectation is usually satisfied. If, on the other hand, you were going to have your offspring scraped from within you and disposed of as medical waste, you will be at the hazard of the next Kermit Gosnell, and for that, be sure to thank the Ass. Justices of the Supreme Court.

Kamala Harris: The Camel Toe of Pro-Abortion Bias

No.

Seriously.

I realize that making fun of people because of their names is a low blow.

And, so, yes, this is a low blow.

Kamala Harris is the Attorney General of California. She wants to be the junior United States Senator from California. In fact, she's currently a candidate for that office. Here's her website.

If you explore her candidate website, you will discover that she uses the page to solicit support for Planned Parenthood. Here's a screen capture for the solicitation page:

I've left the web address bar in the screen capture so there can be no dispute over what Ms. Harris has done. 

Now, lots of people support Planned Parenthood. Why does it matter if Kamala does too?

Because Kamala is the Chief Law Enforcement Officer for the State of California. She is the Attorney General. And, as head of California's law enforcement mechanism, she has used her office to target the Center for Medical Progress and its director, David Daleiden. This week, on the strength of a search warrant obtained by the California Attorney General, police searched Daleiden's home and seized videotape recordings. Presumably, these are the recordings from which ten months of embarrassment and shame have been generated by the Center for Medical Progress to the great discomfort of Planned Parenthood.

Now, as to the Camel Toe of bias.

Some things are obvious. Way more obvious than is typically expected. One such form of obvious display has the charming moniker, "camel toe." If you don't know the phrase or its meaning, you can find it with ease on the interwebs. It suffices to say that, in a more genteel time, a more modest soul would not put on public display that which is made overly obvious in the "camel toe."

Then there is Kamala's "Camel Toe" of bias.

A government officer, the Chief Law Enforcement Officer, is expected to conduct themselves in a manner that puts out of any question the possibility of bias.

That isn't Jim's rule.

Here, for example, is what the California Courts have said on the topic:

"Held to a standard higher than that imposed on other attorneys . . . ." 

"[T]he prosecutor represents 'a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all . . . ."

The danger that flows from bias in the exercise of the prosecutorial function is that justice will always be doubted when it is delivered via biased officers.

For this reason, for a long time, the American Bar Association has set the bar for prosecutorial discretionary decision-making at a high level:

The ABA Standards for Criminal Justice counsel against prosecutorial discretion being exercised in service of impermissible, invidiously discriminatory biases.

In the case of Kamala's Camel Toe of Prosecutorial Bias, here is a candidate for elective office who is soliciting support on her candidate website for an organization, Planned Parenthood, whose practices of disposing of aborted human baby parts has caused much of the nation to recoil in horror and several States to discontinue funding of the organization for any purpose. Clearly, Kamala is biased for Planned Parenthood. There is no other reasonable interpretation of the use of her campaign website to solicit support for the organization.

There's more than just the solicitation of support for Planned Parenthood.

There's the cash.

Harris has received "received $15,000 from five Planned Parenthood-affiliated PACS in 2014, according to ElectionTrack.com[,]" according to a news report by LifeSiteNews. You can read that report and the linked supporting documentation here.

Thus the Camel Toe of Bias, no single lobed dingle berry to stain the prosecution of Daleiden. Here the first lobe, public solicitations of support for Planned Parenthood on the candidate website of the Attorney General, lies in close proximity to the second lobe, oodles of cash lining the candidate coffer for Kamala.

Kamala ought to consider withdrawing from any prosecution of Daleiden. In fact, under typical rules of ethics, because Kamala's judgment is fairly criticized as biased, both Harris and her office should recuse themselves from further involvement in any investigation of Daleiden, or for that matter, of the actual wrong-doer, Planned Parenthood.

Instead, as is so often the case with the unwelcome and intruding Camel's nose, we are just going to be treated to the ongoing display of Kamala's Camel Toe of Bias.

Compelled Speech: Using Government Force to Spread Partisan Messaging

Suppose you and a group of like-minded folk -- sympathetic to the plight of the long-termed unemployed -- develop a plan to assist willing job seekers.

So you organize a non-profit organization. You collect donations of clean, good quality apparel and shoes. You also collect used computers and printers, a copier, a fax machine, a cash register. You also collect donation of personal grooming products included new used razors, soaps, shampoos, conditioners, toothbrushes, toothpastes. You solicit volunteers to teach about office practices, counter sales, and work ethics. You find a small group of volunteer mentors that can assist with things like the process of getting a job and the things that allow an employee to stay employed and gain advancement.

The plan?

Your group raises sufficient funds to open a small set of offices, the mock up of a sales counter, and a mock up of an office setting including workstations and a copy room. You create a one-stop, volunteer-manned, source for assistance to those in employment crises. Once ready, you place advertisements on buses, commuter trains, a billboard or two, and in the yellow pages under employment services. Your ads invite those with critical unemployment or underemployment issues to receive counseling and assistance on alternatives to unemployment.

Your program offers free resume preparation, free basic office training, including computer use, and operation of office machines, and free retail sales training. Participants receive free training on job interview techniques, as well as assistance applying for work. Successful completion of the voluntary program is rewarded with two work appropriate outfits of clothing and shoes, and necessary personal toiletries.

True, neither you nor your fellow volunteers is a licensed human resources trainer, a licensed social worker, a licensed teacher. But the lack of such participating volunteers is not a reflection on your desire to have these types of folks working with your project. Rather, folks with those kinds of qualifications either are too busy with other activities, or, for some, they may consider programs like yours ineffective, or worse, harmful because they distract the unemployed from pursuing assistance through licensed, even state-operated, facilities.

The truth is, some of those folks are rather goaded by your program and its persistence. Their agitation only increases as small successes result in others borrowing your idea and spreading it to other cities in your State.

What to do? What to do? The answer for such naysayers is obvious. Bully you. Bully those that work with you. Bully you out of existence if they can do so.

In the early days of their opposition, they contact yellow pages publishers. Here their goal is to harangue them until, despite the income you provide by purchasing advertisements, the publisher complies with their demands. Initially, of course, they just assert that your ads are fraudulent misrepresentations because they are not actually employment service agencies. Ultimately, your opponents threaten the yellow pages publishers with consumer fraud litigation and prosecution until the yellow pages decides that its financial interests require it to move your ads to some other heading apart from where employment service agencies typically appear.

Still, your determination holds. You and your fellow volunteer redouble your efforts, and continue to enjoy the small successes of those who rejoin the work force.

Unhappy that your efforts have not been sufficiently stymied by their first line of attack, your opponents decide that they should enlist the State legislature to drive you out of existence. A notorious legislative friend of theirs conducts a "study" of your organization's work. The "study" challenges your techniques. They criticize the teaching methods, drawing, for example, as you do, a connection between employee reliability and employment longevity, and between employee drug-dependence and job loss. Offended that your gallant and dedicated group of volunteers engage in something they like to call "moralizing," your opponents cheer the "study" and get it noised about in news media.

As a onerous next straw, the state legislature adopts a law requiring unlicensed, voluntary employment assistance agencies to post a sign in the entrances to their offices and to include include in their advertisements a warning that "This Agency Does Not Employ Any Licensed Employment Counselors, Any Licensed Social Workers, Any Licensed Teachers."

Not that you ever claimed otherwise. Nor that you would refuse such volunteers if they supported your goals and would volunteer to provide services. Still, the Legislature believes that forcing you to say such things will result in some participants turning away at the door, keep others from even showing up, and p, eventually lead to programs such as yours withering on the vine.

You think that the foregoing is not a likely scenario?

If that's what you think, then you are, apparently, unfamiliar with previous efforts by Montgomery County and Baltimore, Maryland, and the City of New York, or the current effort of the California General Assembly to suppress the work of pregnancy resource centers. Just about everything in my proposed factual scenario matches the work of such centers. Volunteer organized, volunteer run. Volunteer participants. Free help. Free supplies. Free. Free. Free. All offered because these centers are being offered by folks who believe that there are, there have to be, humane and caring alternatives to abortion. More than just believing that such alternatives must exist, they have acted to create such alternatives and to reinforce them.

Well, the fact scenario I offer is different. It involves volunteers working with the unemployed. But Montgomery County, Baltimore, New York City, all decided that it is perfectly appropriate to target volunteer organizations that provide resources to pregnant women. Now California is preparing to follow in those ill-advised and Statist footsteps. And, California takes these steps knowing that the existing regulations in Montgomery County, Baltimore, and New York City have already been found to implicate fundamental rights of speech and association protected by the First Amendment.

Yet, the California General Assembly is on track to adopt such a law. Assembly Bill 775, if enacted, will require pregnancy resource services -- entirely voluntary, entirely free, and quite often organized around concepts of religious duty -- to post signs in their lobbies and to include messages in their advertising selected for them, imposed on them, by the State. Those signs and messages would warn potential users of their services that there is no doctor or other licensed medical personnel on the premises.

"Tapping out."

You might be familiar with this concept from the martial arts. When you are being pinned down and cannot free yourself, you can indicate surrender by rapidly slapping the mat, or your thigh, etc. many of us remember having to, or requiring others to cry, "uncle" as part of childhood rough-housing. For Statist pro-abortion types, the equivalent here is for pregnancy resource centers to close.

Oddly, such Statists are often the same ones that freak at the notion of American coins bearing the legend "In God We Trust," or at the use of the Bible in administering courtroom oaths. They are the same folks that salute attacks on such license plate mottoes as "Live Free or Die."

But Statists have no problem prying open the mouths of persons who hold deeply held religious beliefs about abortion and shoving government messages inside them with the knowledge that when they vomit the government message, those that they would assist on a voluntary, no-cost basis will flee. More than hubris. More than disregard for constitutional rights. These Statists are Luddite Speech Nazis, and should be shamed publicly as such.

"Personhood," That is, Status as a Person in the Sense that "Person" is Used in the Constitution, Should be Resolved by the Constitution

If, at this point, I turn a critical eye to the Pain-Capable Unborn Child Protection Act, if I even suggest that it should not be the basket in which we place any of our eggs, let alone all of them, I do it solely because I find that the Act is a poor substitute for the proper response to the growing body of evidence that fetal children are capable of, and do experience, pain.

As an aside, so that you can measure my bona fides as a voice for life and against abortion, let me tell you about me.

• I first articulated a pro-life opinion in public as a Senior in high school at Lejeune High School, (Class of 1976) in an Advanced Biology class taught by Debra Hansen. The position I held then flowed principally from a moral conclusion regarding the act of abortion. As I moved into my adult years, I read extensively about abortion, its causes, its methods, its impact. My moral judgment became seasoned with other, equally valid, grounds of justification for the conclusion that abortion is always wrong.

• Soon, my opinion on abortion translated into action. I began speaking out against legalized abortion, including picketing and demonstrating at a local abortion facility here in Jacksonville, North Carolina. Eventually, in 1982, the rhetoric I and my brother, David Henderson, employed, resulted in a lawsuit against us for defamation by the owner of the abortion business. We prevailed. The defense of our constitutional rights of freedom of speech was accomplished by the North Carolina ACLU and by a newly founded organization, the Rutherford Institute. 

• After we prevailed, my wife and I relocated to St. Louis University so that I could attend the Law School at St. Louis University. In hindsight, no better training ground exists for a pro-life advocate that offered by an urban Catholic University well down the road in its own process of surrendering its soul in pursuit of economic survival. The law school played welcoming host to a vocal pro-abortion element, embodied by the Women's Law Caucus. How hostile could Catholic law school be to pro-life expression? I once was called to an assistant dean’s office for posting a message on the student bulletin board comparing the Religious Coalition for Abortion Rights to Nazi apologists for the Holocaust. Ass. Dean Smith told me that my posting was "the most unprofessional thing he'd ever seen in the law school." Oddly, that was just days after two of my classmates were caught, in the act of copulation, on a classroom floor, by an adjunct professor arriving to teach an evening class!

• Upon graduation, for the next twenty-five years, I practiced law with nonprofit organizations that regularly and consistently included as a segment of cases a variety of opportunities for me to represent pro-life activists and anti-abortion demonstrators. In the process, I represented:

• teens seeking protection from parents trying to force them to have abortions, 
• protesters threatened with arrest for the messages on their signs, 
• pregnancy resource centers threatened with the imposition of a duty to spread the pro-abortion messages of the government. 

• If you have heard of Operation Rescue, Christian Defense Coalition, Randall Terry, Joseph Foreman, Jayne Bray, Michael Bray, Patrick Mahoney, Keith Tucci, Jeff White, Rob Schenck, Paul Schenck, Jeannie Hill, then you’ve heard of my clients or some of them.

Because the PCUCPA is so unlikely to become law, I feel at liberty to observe that the Act is little more than window dressing on a macabre set piece: the more than two score years of legalized child killing in the United States. In the face of the horror, the grinding inhumanity, of our abortion culture, can it possibly be that the best that the House of Representatives can muster is a bill doomed to die aborning -- much like the offspring of an abortion-bound woman -- before it can ever be born.

As a matter of our national history, the Civil War, a national bloodletting of nearly a half million lost lives and untold lost prosperity, was the method by which the Supreme Court's disregarding of the personhood of Africans was, ultimately, corrected.

The right answer to the ongoing holocaust of legalized abortion in America can be found in the historic response of the Congress, the States and the People to the previous erroneous decision of the Supreme Court in Dred Scott v. Sandford. That historic response consisted of three proposed amendments to the Constitution, which became the Thirteenth, Fourteenth and Fifteenth Amendments to the US Constitution.

In Dred Scott, the Supreme Court held that blacks were not, and could never be, citizens of the United States. For that reason, courts could not entertain lawsuits by blacks seeking a declaration that, due to their sojourn in the Free States, they had acquired status as freedmen and could not, thereafter, again be subject to bondage. Civil war and nearly a half million lost lives later, the Nation repudiated the Supreme Court by ratifying the three amendments, ending slavery, guaranteeing an equal right to vote, and, under the Fourteenth Amendment, granting status as US citizens and State citizens to blacks.

Just over a century later, in Roe v. Wade, the Supreme Court likewise concluded that children before birth were not persons in the constitutional sense. For that reason, their own interest in securing their right to life and liberty, and the interests of the States in securing their rights to life and to liberty were completely discounted by the Supreme Court as against the woman's liberty interest in choosing to have an abortion.

In the intervening period, there have been very few shots fired, but so many more lives taken than were lost in the Civil War. Then, in his second inaugural address, Lincoln suggested that the Civil War was a judgment of God on this Nation, in which "every drop of blood drawn by the lash" would have to be answered by "one drawn by the sword." Ultimately, the Confederacy surrendered to the Union, and the three Civil War Amendments were propounded to the States by Congress and ratified by a sufficient number of States. With those amendments, the Constitution expressly read directly contrary to the view of it previously asserted by the Supreme Court in Dred Scott.

Our history -- regarding the constitutional status of blacks -- suggests that there are two sound answers to the illicit Roe v. Wade decision and its progeny.

One answer could come from the Court. The Supreme Court could revisit and overturn Roe, thereby restoring to the States the power to regulate abortion or to prohibit it entirely. That has not happened, not in the more than forty years since the aberrant Roe decision.

There was a time when I, young and idealistic, thought the possibility of an internal correction by the Court could resolve the wrong of Roe. Nearly three decades have passed since I took up the practice of law in a public interest setting, with the hope that, by doing so, I would help to bring about that internal correction by the Court. In that time, I have made many trips to the Supreme Court. I have served as counsel in hundreds of cases representing those that oppose abortion through peaceful demonstrations. In a handful of instances, I represented younger women seeking protection from abortions being forced on them by parents. I also litigated against State and local criminal laws restricting free speech near abortion facilities, adopted by legislative bodies that treated abortion as though it were a holy sacrament. If the Court ever reverses course in this matter on its own, it will come as a great surprise to this no man who is no longer misguided by dreams.

Or, of course, the other answer could come from Congress, the States and the People. We could amend the Constitution in a manner that effectively overturns Roe. That effect was exactly the one gotten for African slaves by the Fourteenth Amendment: reversal of a holding of the Supreme Court that had installed that Court's wrong-headed interpretation of the language in the Constitution as the language of the Constitution. In Dred Scott, the Supreme Court said, "no," blacks are not citizens, and could never be citizens. A half million lost lives and nearly 80 billion dollars (present day value) of treasure later, the Nation bent the Supreme Court over its collective lap and gave it Fourteen spankings. The lesson lasted about as long as it took for the questions of "separate but equal" accommodations for blacks, WWII internment of Japanese Americans, and abortion to come before the Court.

So the certain way, the sure way, to end legalized abortion would be to amend the Constitution to expressly extend legal personhood status to fetal children. Article V of the Constitution sets out two methods of amending the Constitution. Congress may initiate an amendment and send it to the States for ratification. In the alternative, the States may call on Congress to call a convention for proposing amendments to the Constitution. Congress could propose an amendment to the Constitution in terms of the proposed Act.

Availability of the amendment process has not produced any change in the Constitution, however, since the decision in Roe v. Wade. How many millions more fetal Americans must be sacrificed on the altar of Supreme arrogance and ignorance before the Court's error is repudiated in a constitutional amendment ending the horror of abortion?

Missteps or Next Steps: Is this Federal Statute the Answer

I won't defer to others on the following point:

I am unapologetically anti-abortion and unashamedly pro-life. Given the ability to do so, if, like Obama, I could play emperor, I would make abortion always a prohibited criminal act. By the way, just as in history, I could do so without the prospect of women being tried for participating in the abortions of their own children.

Now, of course, criminalizing abortion can be justified from a religious, particularly Christian, perspective. "Suffer the little ones to come unto me, and forbid them not," after all, is one of the more memorable and kindly counsels that event ardent atheists recognize as a teaching of the Savior. When Mary, recently having become pregnant, visited her cousin, Elizabeth, who was pregnant with John the Baptist, Elizabeth reported to Mary that when Mary spoke, the child leapt in her womb. In Aramaic, she used the word, "blephos." That word means "child" or "little one." Still, while it suffices for people of the Christian faith that Jesus took a most solicitous view of the value of children, that perspective would not suffice to justify such a restriction in an irreligious, or religiously pluralistic society. While it constitutes a valid reason to criminalize abortion, it is not, by itself a sufficient one.

Criminalizing abortion can be justified from concern for the life and health of women that resort to abortion. Abortion is a violent physical assault on a woman. There is, after all, an atmospheric about the decision by the Republican Leadership to have held this vote on the day it chose. Kermit Gosnell, a licensed medical doctor, is in prison because he killed a woman as part of providing her with a safe legal abortion; a jury also convicted Gosnell of three separate counts of first degree murder because, after three infants were born alive during abortions, he cut their spinal cords, killing them. Abortion disrupts a natural process. Often, particularly later abortions, involve even more dangerous assaults on the woman's body to accomplish the killing of her child. There is little doubt that abortion never helps women. But in a society where genuine concern for women is portrayed as shameless chauvinism, that concern would not suffice.

The better ground on which abortion should be criminalized pertains to the civil and human rights of the fetal child. That ground is, in its essence, indistinguishable from the ground on which this Nation ultimately rejected the legality of enslaving others. Remember, the American experience with the Peculiar Institution of Slavery depended in large part on a view that blacks were not persons in the same sense that whites were. That view is the one expressed by Thomas Jefferson in his Notes on Virginia. There he wrote, “I advance it as a suspicion only, that the blacks, whether originally a distinct race, or made distinct by time and circumstances, are inferior to the whites in the endowments both of body and mind."

In the same fashion, though by different terminology, abortion advocates have denigrated the separate and equal status of fetal humans as persons. They denigrate the personhood of fetal children in both biological and constitutional senses. As to the former, arguments for abortion that dispute the biological evidence for the fetal child's separate existence and identity have hung on long after the medical and biological evidence resolved those questions in favor of the humanness and separate existence of the fetal child.

Frankly, the persistence of that view as a matter of biology is decided in conflict with science, as testimony going back to the Senate's Hearings on S. 158, "The Human Life Bill," established. What remains then, is an argument derived from Roe v. Wade's judicial usurpations, that fetal children are not persons, at least not persons in a constitutional sense. That the Court necessarily rejected the personhood of the fetal child as part of deciding Roe v. Wade is no more dispositive there than was the Supreme Court's determination in Roe that blacks are not persons, but chattel goods.

Ultimately, as our national history showed, the one sure way to end slavery, the sure means of tattooing equality regardless of race or national origin on the skin of our governmental framework was to amend the Constitution. I have no remaining doubt that amending the Constitution is the only adequate and complete remedy to the current injustice of legalized abortion.

The House Concludes: Unborn Children Experience Pain

Why shouldn't Republicans in Congress welcome the opportunity to flush out the pro-abortion extremism of their House Democratic colleagues? That welcome effect of the debate and vote doesn't entirely explain the Pain-Capable Unborn Child Protection Act (“PCUCPA”). There is, more importantly, the deeply disconcerting knowledge that all that hacking, chopping, saline boiling, heart puncturing, and collapsing of craniums that abortionists do is being inflicted on fetuses that can and do experience pain, and, in fact, may experience pain more severely than do newborns and infants.

A review of the findings of fact contained in the Act confirms that the House acted because of its conclusion that facts existed on which it could make a judgment that abortions after 20 weeks gestation. Key findings of fact by the House include:

"(1) Pain receptors (nociceptors) are present throughout the unborn child's entire body and nerves link these receptors to the brain's thalamus and subcortical plate by no later than 20 weeks after fertilization.

(2) By 8 weeks after fertilization, the unborn child reacts to touch. After 20 weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example, by recoiling. 

(3) In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response. 

.... 

(11) Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, if not earlier."

The House made findings as part of the Act. Those findings, in turn, find substantial support in testimony from a source of apparent significant credibility. A decade ago, Congress enacted the Partial Birth Abortion Ban Act of 2003. Two constitutional challenges soon followed in federal courts. Those challenges, successful in trial courts, ultimately led to the Supreme Court's decision sustaining the constitutionality of the PBABA. At trial, the evidence offered supporting the PBABA included the testimony of  Dr. Kanwaljeet S. Anand, Regarding that testimony, the federal trial court in New York City said the following:

The Court finds that the testimony at trial and before Congress establishes that D&X is a gruesome, brutal, barbaric, and uncivilized medical procedure. Dr. Anand's testimony, which went unrebutted by Plaintiffs, is credible evidence that D&X abortions subject fetuses to severe pain. Notwithstanding this evidence, some of Plaintiffs' experts testified that fetal pain does not concern them, and that some do not convey to their patients that their fetuses may undergo severe pain during a D&X.

That the Court stated its finding thus is particularly significant because, despite finding that the evidence established "severe pain" being experienced by "fetuses," the Court still concluded that the PBABA violated the liberty interests of women in access to abortion procedures. Had the Court made that finding and struck down the statute, partisans might have accredited the decision to a bias on the part of the Court regarding the statute. There, however, the Court's bias -- if one existed -- favored the liberty interest in women over the power of Congress to restrict abortions using a procedure it acknowledged caused severe pain to fetuses.

The issue of pain in the fetus is not without a skin of controversy. In "A Systematic Multidisciplinary Review of the Evidence," published in the Journal of the American Medical Association, a lawyer and three doctors conducted a review of studies on pain in fetuses. The survey is accessible and fairly understandable. They conclude:

Because pain perception probably does not function before the third trimester, discussions of fetal pain for abortions performed before the end of the second trimester should be noncompulsory. Fetal anesthesia or analgesia should not be recommended or routinely offered for abortion because current experimental techniques provide unknown fetal benefit and may increase risks for the woman.

The survey gained some notice in media, probably because it was carried as an article in JAMA. What the authors of the article did not disclose to the editors of JAMA, however, was a record of pro-abortion activism that might reasonably be interpreted as influencing the selection of studies reviewed and reported by the article.

The National Right to Life Committee prepared a rebuttal to the study. You can find it here. A damning segment of the NRLC rebuttal connects the study's authors pro-abortion advocacy:

9. The lead author of the article, Susan J. Lee, who is now a medical student, was previously employed as a lawyer by NARAL, the pro-abortion political advocacy organization (Knight Ridder, August 24).

10. One of Lee's four co-authors, Dr. Eleanor A. Drey, is the director of the largest abortion clinic in San Francisco (San Francisco Chronicle, March 31, 2004, and Knight Ridder, August 24, 2005). According to Dr. Drey, the abortion facility that she runs performs about 600 abortions a year between the 20th and 23rd weeks of pregnancy (i.e., in the fifth and sixth months). (San Francisco Chronicle, March 31, 2004) Drey is a prominent critic of the Partial-Birth Abortion Ban Act, and a self-described activist. (In a laudatory profile in the newsletter of Physicians for Reproductive Choice and Health, September 2004, it was noted that "much of Dr. Drey's research centers on repeat and second-trimester procedures . . .," and quotes Drey as saying, "I am very lucky because I get to train residents and medical students, and I really do feel that it's a type of activism.") Drey is also on the staff of the Center for Reproductive Health Research and Policy (CRHRP) at the University of California, San Francisco -- a pro-abortion propaganda and training center. [] 

11. However, one reporter (Knight Ridder's Marie McCullough) did contact JAMA editor-in-chief Catherine D. DeAngelis regarding the ties of Lee and Drey. McCullough reported that DeAngelis "said she was unaware of this, and acknowledged it might create an appearance of bias that could hurt the journal's credibility. 'This is the first I've heard about it,' she said. 'We ask them to reveal any conflict of interest. I would have published' the disclosure if it had been made." (Knight Ridder, August 24, 2005) A day later, DeAngelis told USA Today that the affiliations of Drey and Lee "aren't relevant," but again said that the ties should have been disclosed. If she really thought the affiliations were not relevant, why would she say that they should have been disclosed? If a review of the same issue by doctors employed by pro-life advocacy groups had been submitted or published, would those affiliations have been ignored by journalists?  

12. Dr. David Grimes, a vice-president of Family Health International, has been relied on by CNN, the New York Times, and some other media as a purported expert to defend the paper. Dr. Grimes has made pro-abortion advocacy a central element of his career for decades. (During the time he worked for the CDC in the 1980s, his off-hours work at a local late-abortion facility sparked protests from some pro-life activists.  In 1987, a year after he left the CDC, Grimes testified that he had already performed more than 10,000 abortions, 10 to 20 percent of those after the first trimester.) In addition, Grimes was previously the chief of the Department of Obstetrics, Gynecology and Reproductive Sciences at the San Francisco General Hospital -- the very same institution where author Drey directs the abortion clinic.

Still, these criticisms, while revealing of researcher bias, tend toward ad hominem and do not, by themselves, resolve the questions of fetal pain.

Dr. Anand's testimony serves as a clear, highly experienced, and expert source on the question of fetal pain. In his corner, among other voices, there is the British Journal of Obstetrics and Gynaecology. In a 1999 issue of BJOG, another review on fetal pain concluded as follows:

The assessment of whether or when the fetus is likely to feel pain has to be based on an evaluation of the available anatomical and physiological evidence. The physical system for nociception is present and functional by 26 weeks and it seems likely that the fetus is capable of feeling pain from this stage. The first neurones to link the cortex with the rest of the brain are monoamine pathways, and reach the cortex from about 16 weeks of gestation. Their activation could be associated with unpleasant conscious experience, even if not pain. Thalamic fibres first penetrate the subplate zone at about 17 weeks of gestation, and the cortex at 20 weeks. These anatomical and physiological considerations are important, not only because of immediate suffering, but also because of possible long term adverse effects of this early experience.

The technical summary led to the following pithy and, honestly, piteous appeal:

The eighteenth century philosopher, Jeremy Bentham, wrote of animals The question is not Can they reason?, not Can they talk?, but Can they suffer?. This caused a change in attitude towards animals and their treatment that is continuing to day, such that in the UK, even frogs and fishes are required by Act of Parliament to be protected by anaesthesia from possible suffering due to invasive procedures. Why not human beings?

Indeed, why not human beings?

Perhaps not human beings because, among the feral lot of us, there are so many Obamas, so many Wasserman Schultzes, panderers to the lowest urges, who recognize no point in time when a child is too like us to accept the unrestrained brutality of abortion, when a method is too barbaric to tolerate its application as the solution to the problem. Obama's take on abortion is found in his remarks on the 38th anniversary of the Supreme Court's decision in Roe v. Wade:

Today marks the 38th anniversary of Roe v. Wade, the Supreme Court decision that protects women's health and reproductive freedom, and affirms a fundamental principle: that government should not intrude on private family matters. I am committed to protecting this constitutional right.

Wasserman Schultz, no doubt, has an answer to the question why not protect fetal Americans from possible suffering due to abortion procedures. For Wasserman Schultz and her cohorts, the only justifiable restriction on abortion is found in the subjective judgments of abortion-bound women. Any federal statutory imposition might be taken as an expression of distrust of women's judgments about such matters, and that, in Wasserman Schultz's schema is the unpardonable sin.

Naked Political Ploy to Expose Abortion Extremism?

The House vote on the Pain Capable Unborn Child Protection Act is a welcome turn of events. The House held its vote on the anniversary of the murder convictions of abortionist Dr. Kermit Gosnell, MD. By holding its vote on that anniversary, the House powerfully reminds us that abortion is a nasty, often unregulated, and unseemly practice.

Gosnell's little shop of horrors was a terrible place to be killed. And what a dreadful way to go, dying in the act of having your own offspring killed. By using the anniversary date of Gosnell's conviction, the connection to poor outcomes for women and children in abortion has been deliberately drawn by the House.

Of course, at some point, the allegations will be thrown about that the House vote simply served political purposes. In other words, those accusing the House Leadership of engaging in political theater will be accusing the Speaker of the House and the Majority Leader of an unseemly and cynical act. In that view, Boehner & Co. held the vote simply as preparation for 2016 Congressional elections. For the cynics, the vote simply presented an the opportunity to spear those Representatives – predictably Democrats – that would vote against even such a late term abortion restriction offered on such a humanitarian ground as that of the capacity of the fetus to feel the pain of her own demise.

And perhaps there are such machinations afoot; perhaps Republicans in the House are flushing out those elected Representatives so firmly committed to legalized abortion that no restriction – not as to the method of abortion, not as to the lateness of term in pregnancy at which the restriction would take effect – none whatever can be permissibly imposed on the right.

The leadership of the Democratic Party does nothing to avoid the perception that, for Democrats, there's no such thing as a permissible restriction on abortion. Just recently, Democratic National Committee Chair Debbie Wasserman Schultz, had the opportunity to identify a point in pregnancy, late in pregnancy, or a size of fetus, such as one weighing 7 pounds, at which point Democrats would support legislative restrictions on abortion. Wasserman Schultz, a good storm trooper for the abortion industry, responded:

"I can't tell you a specific date and time past which we on all – in all cases are certain that that choice shouldn't be made because that decision is very unique and individual to the woman, and should be in consultation with her conscience and her god and her doctor, that is a decision left to her."

Given the role played by the President, as leader of his party, in selecting the Chair of the Democratic National Committee, either the President shares Wasserman Schultz's extremism on abortion, believing that no restrictions may be permissibly imposed on abortion, or the President should take Ms. Wasserman Schultz to the woodshed for failing, in such an evident and public way, to state a defensible and articulate point in time, acceptable to Americans, when abortions can permissibly be proscribed.

We all know, or should know, however, that Wasserman Schultz will not be taken to the woodshed by Obama. Obama is the best friend the abortion industry has in American government. Going back to his time in the Illinois Senate, when he voted "present" on a panoply of initiatives, proposals, and ideas in the form of bills and resolutions, one instance in which the future President would be reliably voting his heart was on consideration of abortion-related legislation. 

His forte, it turns out, was to resist Illinois bills that would impose on doctors a duty to provide care to children born alive after an abortion. Notice that these were not bills that would have prohibited abortion. Nor were these bills that would have required abortion businesses to be subject to the same health and safety standards as other medical clinics. No, these were just rules that would, if adopted, tell the Dr. Gosnells of Illinois that if, following an abortion, a child was born alive, the doctor would be obliged to provide medical care to preserve the child's life. Not once, not twice, but three times, Obama took the lonely vigil stand against the imposition of such a duty by law.

The Problem of Pain: Does Anyone Care Whether Fetal Humans Experience the Pain of Their Extermination?

From time to time, a matter of gravity requires fuller treatment than Twitter allows, requires more thought than brief and witty posts permit.

I've been thinking about the recent passage by the United States House of Representatives of House Bill 1719, The Pain Capable Unborn Child Protection Act of 2015. The Act prohibits most abortions that occur after 20 weeks gestation, and does so because of the conclusion expressed in the bill that fetal children not only experience "sensation" but feel pain. I think the case for prohibiting abortion stands without reference to the experience of pain, based on the indisputable human condition of fetal children. Yet, who can doubt that most, if not all, will find a particular cruelty in the savagery of late term abortions inflicted without consideration of the experience of pain in dying?

So I have spent some time considering HB 1719, and written what my good friend Lou called a "mega-blog."

Because this particular posting is extensive, I've broken it down into digestible portions. While the blog made sense as an assembled whole, it did require a certain level of commitment to complete it. In parts, the segments each present a set of complete considerations relevant to the whole. I hope that you find it of value.

Here are links to the separate posts. I offer them in what seems to me to be the correct rhetorical order:

The House Acts to Save a Small Number of Fetal Humans. This post introduces the disputed bill and reports on its passage. It also notes the panic peddling of abortion hawkers amongst the Democratic Party and leadership.

Naked Political Ploy to Expose Abortion Extremism? In politics, the accusation is frequently made that some bill or another was only offered cynically, for some purpose unrelated to the topic of the bill. Was the Pain-Capable Unborn Child Protection Act a naked political ploy? Or are those who refuse even the most meager measures the naked ones?

The House Concludes: Unborn Children Experience Pain Here, we get to the heart of the matter. Fetal humans are biologically alive. Medical treatment of fetal humans, and physiological research on human development shows that at least by the end of the 20th week gestation, an unborn child not only experiences sensation, but that sensation can be experienced as pain. Not that the evidence is undisputed, but the evidence is there, and just how does humanity ignore inhumanity?

Missteps or Next Steps:  Is this Federal Statute the Answer Abortion has been a prohibited, criminal act for many times longer than its present status as a blessed legal sacrament of American progressivism. With the certainty that the late term fetal human is forced to endure the pain of her own death, is the Pain Capable Unborn Child Protection Act the answer?

"Personhood," That is, Status as a Person in the Sense that "Person" is Used in the Constitution, Should be Resolved by the Constitution Our history as a people should teach us this: the surest bulwark against government denial of human personhood is to enshrine the status of fetal humans in the Constitution by Amendment. The history shows the way.

Lesser Solution: Well-meant Window Dressing? Finally, there are real problems with the proposal, particular for those that would hold fidelity to a written, fixed in meaning, Constitution. Just because we can get away with a naked grab of power in the Legislative Branch does not justify doing so. We don't fix things by breaking things more.

There's interesting news from my hometown, Albuquerque, New Mexico, where it appears the County Commissioners are contemplating a county ordinance limiting picketing in residential areas.

So Bernalillo County, where Albuquerque is located, will limit residential picketing.

The thing is, the proposed ordinance prohibits pickets targeting a particular residence (what might "targeting" mean) "without the express prior consent of the occupant(s)." Hmmmmmm.  "Express consent" is an interesting catch phrase.

Suppose a pro-Abortion group wants to show support for local abortion doctor?  Permission granted, based on the beleaguered occupants desire for a sign of affection from the community.

Suppose a pro-life group wants to protest against local abortion doctor.  Permission denied, equally obviously.  After, a man's home is his castle.

Nor do the obvious ham-handed likely possibilities draw the limits of the variations that are possible:

Suppose the husband of abortion physician has disliked his wife's practice for sometime (as an African American he has come to understand that Jesse Jackson was right when he referred to abortion as the genocide of the black race).  So he tell the pro-life group, "sure, you can picket but your signs have to educate and inform on the racial implications of abortion."  The abortionist wife, on the other hand, says, "no you can't."

What if children say no, but parents say yes.

And that pesky tenant in basement apartment, suppose she says yes even though the landlord upstairs says no.

And still there's that "targeting" language.

Is it targeting to identify abortion as the modern American equivalent of the Holocaust, even where no effort or speech connects that rhetorical consideration with the occupants of the residence?   I mean, suppose the sign just says, "Abortion ... The American Holocaust."  No sign saying, "Dr. Smith at 1234 Sesame Street Is Akin to Josef Mengele."

Must occupants be identified in a way that sets them apart from neighbors, than others living in the community?

What if the picketers go two doors down with signs indicating that the house two doors up is occupied by an abortionist, her husband and kids?

Of course, the First Amendment has never stopped pro-abortion politicians from pandering for votes.  And, sadly, it has never stopped pro-abortion justices of the Supreme Court from pandering to their constituencies.  Yet, as the article indicates, Commissioner Johnson at least offers the hope that sanity will prevail (along with Freedom of Speech).