Judie Brown
Forsythe's dilemma: legal positivism
By Judie Brown
September 30, 2009

The recent commentary by Clarke Forsythe, senior legal counsel at Americans United for Life, presents a challenge that must be met. Entitled "The Blackmun Myth" for the National Review Online http://article.nationalreview.com/?q=MWY2OTI5NThkNThhYWU1NTgzZWRhMWIxN2Y3YjA3ZDc and "Pro-Lifers Must be Realistic About How, When Roe Abortion Case Can be Reversed" for LifeNews.com, http://www.lifenews.com/nat5475.html the article goes to great pains to rebut the fundamental arguments supporting the quest for state human personhood efforts. The fact that it never gets there is the point of this commentary.

Let's begin with Forsythe's first quip that those who pursue state human personhood efforts are "heading toward a brick wall." While Forsythe alleges that pro-lifers are in error when they argue that state human personhood efforts will confront Roe v. Wade with a fundamental challenge regarding the humanity of the preborn child, his reasoning does not bring us to the conclusion he wishes the reader to draw.

To be honest, Mr. Forsythe is a well-known attorney of some note and he has done great work on state and federal legislation. In other words, he is no slouch! Yours truly is a pro-life leader without a legal background who has spent 40 years of her life studying, learning, sharing and struggling to restore legal personhood to preborn children.

However, it is obvious, even to me, that Forsythe is on very shaky ground when he maintains that Blackmun and his confreres on the Supreme Court did not know when a human being begins or chose not to address it. Further, nobody who has been focused on human personhood for the past 30 years has made that allegation.

What we did say, and what is factually accurate, is that the court refused to examine the scientific evidence and, in fact, said so in the Roe decision: http://www.tourolaw.edu/Patch/Roe/

    Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

Blackmun, writing for the majority, makes it clear that either the Justices did not know the answer to the fundamental question or they chose for political reasons to hide behind the confused statements of those to whom they listened and deny culpability. Call it what you will, be it cowardice, shrewd politicking or downright stupidity, the Court did, in fact, admit ignorance on when a human being's life begins. This is, according to attorneys at the Thomas More Law Center, among others, the central holding http://www.thomasmore.org/qry/page.taf?id=18&_function=detail&sbtblct_uid1=103 of Roe, and therefore the only question that will challenge and bring it down.

Forsythe explains that "no state can — by statute or constitutional amendment — change the meaning of the 14th Amendment to the federal [C]onstitution." However, those of us guiding the human personhood struggle in various states and at the federal level have never said our goal was to "change" the meaning of the 14th Amendment. We just want to bring common sense back to what we know the authors of the Amendment intended when they wrote it in the first place.

One of the politicians debating the 14th Amendment at the time, Representative Joshua R. Giddings, as much as admitted this when he said, http://www.all.org/article.php?id=10067

    Our fathers, recognizing God as the author of human life, proclaimed it a "self evident truth" that every human being holds from the Creator an inalienable right to live....

    If this right be denied, no other can be acknowledged. If there be exceptions to this central, this universal proposition, that all men, without respect to complexion or condition, hold from the Creator the right to live, who shall determine what portion of the community shall be slain? And who shall perpetrate the murders?

Clearly, it was never the intent of the framers of the 14th Amendment to deny legal protection to an entire class of persons, be they African-American or preborn. That is the entire point of the personhood effort in our nation today: to reaffirm this assertion. Doing so does not in any way "change" the 14th Amendment, but rather brings sanity back to the public understanding of why this Amendment applies to every human being, including those not yet born.

Although Forsythe opines, "that (because of our system of federalism) it will not — it cannot — establish 14th Amendment personhood or set up a test case to overturn Roe," there are other equally astute legal minds who take the opposite position. For example, in rendering his opinion on the question, Robert Muise of the Thomas More Law Center made the point: http://personhood.net/docs/MuiseResponse.pdf

    It is a well established principle of law that States possess the right to adopt their own constitutions with rights more expansive than those conferred by the federal [C]onstitution. See Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) (affirming "the authority of the State to exercise its police power [and] its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution).

It, therefore, remains to be seen when one offers conjecture on the subject of whether or not a state human personhood amendment can or cannot challenge the central holding of Roe, regardless of the cold water Forsythe is throwing on the efforts. He is not a seer, he is not a fortune teller, and while his opinion has validity, it is one of many opinions on this question.

On a different point, I find it troublesome that Forsythe says, because the U.S. Supreme Court's Webster decision found the preamble of a Missouri law "constitutional," pro-lifers should be happy to protect threatened preborn babies in "non-abortion situations." While we are indeed grateful that we can do this by law, this will never result in the recognition of the preborn human being as a person in every situation, and it will not bring us to a point in history where human rights are recognized for all including the not yet born. If our goal is to ultimately achieve equal rights for all human persons, then human personhood is the only road to travel, regardless of what the Court said or did not say in Webster. The Court is not, after all, a supreme being; it is merely a group of men and women who are sorely misguided on the question of human personhood.

Forsythe alleges that those who support human personhood are suffering from a "profound misunderstanding of why most of those justices support Roe." He sets forth his analysis of why this is so, and, in the process, makes a grave error. He exposes the real reason why he has repeatedly articulated his opposition to human personhood efforts in the states. Without being at all unfair or confrontational, I would propose that perhaps Forsythe has fallen into the mentality that the Court is indeed the final word on the subject of abortion and all that it entails.

Professor Charles Rice made this point years ago, when he wrote about the problem of secular humanism in the law leading to what he called a type of legal positivism. He wrote, http://www.ewtn.com/library/PROLIFE/CF2.TXT

    When the Supreme Court, in Roe v. Wade, broke this necessary correspondence between humanity and legal personhood, it opened the door to unrestricted speculation as to the meaning of legal personhood. If human beings are not necessarily legal persons, well, then, who are? The Court, incidentally, was reflecting the growing dominance in American jurisprudence of legal positivism, the notion that since the mind is incapable of knowing the essences of things and since, in the words of Hans Kelsen, the leading legal positivist of this century, "justice" is merely an "irrational ideal," there is no inherent limit to what the law can do. Therefore, whatever decrees are handed down pursuant to prescribed legal forms by the ruling authorities must be accepted as valid law regardless of their content."

Professor Rice is explaining something that is extremely vital to this current question of whether or not pursuing human personhood is the equivalent of running into a brick wall. I happen to believe that Rice is correct and that the Supreme Court and many lower courts, for that matter, have set themselves up as gods in their own right. They have denied that there is a Supreme Being who is God and have chosen to avoid, at all costs, formulating decisions based on the natural law. There has been a divorce, if you will, between reason and judicial opinion, and the results are everywhere, including the ongoing decriminalization of brutal acts of abortion.

With all due respect to Forsythe and his colleagues, it is my fervent belief that the pro-life movement is at a critical crossroads. It is imperative for each of us, upon examining our own attitudes and praying for guidance, to choose God's way and stay the course; regardless of the barbs, the public insults and the efforts to undo what we are putting together in the various states and at the federal level in our quest for human personhood.

We are not at war against legal positivists and secular humanists; we are engaged in a battle with evil. Forsythe concludes by saying, "There are other goals that are more important — and more achievable in the current environment — than an illusory test case to 'challenge Roe' based on questions that the current justices simply aren't asking."

Contrary to that view, I would argue that it is not wise for us to base our efforts on paying attention to the "questions that the current justices" are asking, but rather to make absolutely certain we are faithful to God in our public witness to the questions He will be asking when we face Him, as each of us surely will, at the judgment.

I invite Forsythe to at least think about this, and to know that, even if he continues to take issue with human personhood efforts at the state level or elsewhere, we admire him, we praise him for all the good he has done and we look forward to working with him when possible, without ever surrendering our goal of equal rights for all, born and preborn.

© Judie Brown


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Judie Brown

Judie Brown is president and co-founder of American Life League, the nation's largest grassroots pro-life educational organization... (more)


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