Life Advocacy Briefing

Outrage from the D.C. Circuit

THE MOST CRITICAL NEWS we found last week, with Congress on recess for a week in honor of Memorial Day, is centered in actions by various federal courts, particularly a disturbing ruling from the DC Court of Appeals.

The Court voted 6 to 3 to refuse to reconsider a decision by one of its panels. The court let stand an unconscionable ruling forcing Priests for Life and the Catholic Archdiocese of Washington (DC) to obey the Obama Regime’s edict that these faith-based non-profits contract for the provision of contraceptives – even abortifacients – to their employees.

The refusal of the DC appellate bench to take up the case was expressed in a deeply disturbing statement authored by Judge Cornelia Pillard, whose nomination was fought bitterly in 2013 by pro-life organizations and citizens but was confirmed in a 51-to-44 vote.

Votes Have Consequences

WE PUBLISH HERE, as a reminder for our readers, the list of still-serving Senators who voted to confirm the radical Ms. Pillard in December, 2013: Democrats Barbara Boxer & Dianne Feinstein/CA, Michael Bennet/CO, Richard Blumenthal & Christopher Murphy/CT, Chris Coons/DE, Bill Nelson/FL, Mazie Hirono & Brian Schatz/HI, Richard Durbin/IL, Angus King/ME, Ben Cardin & Barbara Mikulski/MD, Edward Markey & Elizabeth Warren/MA, Debbie Stabenow/MI, Al Franken & Amy Klobuchar/MN, Claire McCaskill/MO, Jon Tester/MT, Harry Reid/NV, Jeanne Shaheen/NH, Cory Booker & Robert Menendez/NJ, Martin Heinrich & Tom Udall/NM, Kirsten Gillibrand & Charles Schumer/NY, Heidi Heitkamp/ND, Sherrod Brown/OH, Jeff Merkley & Ron Wyden/OR, Bob Casey/PA, Jack Reed & Sheldon Whitehouse/RI, Patrick Leahy & Bernard Sanders/VT, Tom Kaine & Mark Warner/VA, Maria Cantwell & Patty Murray/WA and Tammy Baldwin/WI.

GOP Senators Lisa Murkowski (Alaska) and Susan Collins (Maine) voted for cloture only, voting “no” on confirmation. (The cloture motion brings the nomination forward for a vote.) Delaware’s Democratic Sen. Thomas Carper & Indiana’s Joe Donnelly also voted “yes” only on cloture; Sen. Carper did not vote on the confirmation roll call, while Sen. Donnelly voted “no” on confirmation.

Raising the Alarm

THE PILLARD SCREED WAS ANSWERED by a brilliant dissent authored by Judge Janice Rogers Brown, who was confirmed to her post in 2005, and joined in by Judges Brent Kavanaugh, serving on the DC bench since 2006, and Karen Henderson, a DC Circuit Judge since 1990.

The dissent signed by Judge Brown, quoted by Family Research Council’s Tony Perkins in his Washington Update, warns of a dangerous encroachment by government not just on our religious rights but on the very role of religious institutions in American society.

“‘Viewed objectively,’ she writes,” as quoted by Mr. Perkins, “‘the Plaintiffs’ belief that the acts the regulations compel them to perform would facilitate access to contraception in a manner that violates the teachings of their Church may “seem incredible, if not preposterous,” to some people. However, this Court is neither qualified nor authorized to so scrutinize any religious belief. The panel trespassed into an area of inquiry Supreme Court precedent forecloses. … Under the panel’s analysis, it seems no claim of substantial burden may prevail where the religious significance of conduct under scripture as interpreted by a faith tradition differs from the legal significance of that conduct under the laws of the United States as interpreted by federal judges.’

“The government, she explained,” writes Mr. Perkins, “has taken over the role of the church – imposing its own orthodoxy on the people. ‘Consequently, orthodoxy has been rehabilitated,’” she writes, quoted by Mr. Perkins, “‘and dissent from the government’s determinations may be quelled through coercion – onerous fines or banishment from commerce and the public square.’”

“[Judge] Brown … powerfully argues,” declares National Review Online’s Ed Whelan in his Bench Memos blog, “that secular progressivism has become the oppressive new orthodoxy, … As ]Judge] Brown points out,” Mr. Whelan writes, “the ‘refuge’ that religious adherents may still seek under the federal Religious Freedom Restoration Act means that ‘we do not find ourselves full circle quite yet.’

“But when the Catholic Archbishop of Washington, DC, Priests for Life and other Catholic non-profits are compelled under the threat of massive fines,” writes Mr. Whelan, “to facilitate the provision of contraceptives (including those that operate as abortifacients), the circle is closing fast and tight – like a noose.”

Anti-Life Bias OK’d by Federal Appellate Panel

A FEDERAL APPEALS COURT PANEL based in Albany, New York, in late May overturned – by a 2-to-1 vote – a 2011 federal district court ruling in New York State’s long-pending “Choose Life” license plates case. The majority of the panel rejected the plate, ignoring the fact that New York has a long tradition of issuing specialty license plates for groups with which the state’s left-wing public officials agree.

It started in 2002, with the application by a pro-adoption group, the Children First Foundation, for a specialty license plate showing a cartoonish sketch of the sun and two smiling children and the slogan “Choose Life,” a design offered as a specialty plate in some 25 states and the District of Columbia. The state rejected the specialty plate, claiming, reports Ben Johnson of LifeSiteNews.com, “the message and design [were] ‘too controversial,’” precipitating a lawsuit filed by CFF in 2004.

“New York’s Dept. of Motor Vehicles repeatedly denied the ‘Choose Life’ license plates,” writes Mr. Johnson, “on the grounds that the message was ‘patently offensive.’”

A three-judge panel of the Second Circuit Court of Appeals – the same court as acted last month – in 2006 rejected the state’s motion to dismiss the CFF case, stating the plaintiff “‘specifically alleges that defendants [the State] denied the picture-plate application “based on their disagreement with [the] life-affirming viewpoint expressed on the plate,”’” reports Mr. Johnson. “‘On a motion to dismiss,’” the judges wrote, as quoted by LifeSiteNews, “‘we must accept this allegation – and all reasonable inferences drawn from it – as true.’” The panel at that time, writes Mr. Johnson, “agreed that Albany officials denied the plates based on viewpoint discrimination.”

So the case continued, raging, notes Mr. Johnson, “for more than a decade.” A federal district judge ruled in 2011, reports LifeSiteNews, “that ‘New York has run afoul of the First Amendment by giving the Commissioner [of Motor Vehicles] unbridled discretion to engage in viewpoint discrimination.’”

In view of both the facts in the case and the centrality of the First Amendment to life in America, one would have thought that obviously well-founded ruling would have settled the matter. But New York officials appealed, and the state’s blatant speech discrimination persisted while the case moved up to the appellate level.

Declared CFF attorney Jeremy Tedesco, a senior counsel at Alliance Defending Freedom (ADF), quoted by Mr. Johnson, “‘Pro-adoption organizations should have the same speech rights as any other organization. While the district court affirmed this basic freedom, the circuit court denied free speech in favor of government censorship. … The state doesn’t have the authority to target the Children First Foundation specialty plates for censorship based on its life-affirming viewpoint.’”

Judge Rosemary Pooler, an appointee of Pres. W.J. Clinton, wrote the majority opinion in last month’s rejection of CFF’s free-speech rights. Ignoring entirely the discrimination evidenced by the state’s long-standing approval of other specialty plates, Judge Pooler claimed, writes Mr. Johnson, “the state’s denial did not harm anyone’s freedom of expression,” noting that “drivers ‘may display a “Choose Life” bumper sticker – or even cover every available square inch of their vehicle with such stickers. That message,’” she wrote, “‘will resonate just as loudly as if vehicle displayed a “Choose Life” license plate.’” True, but clearly irrelevant.

The dissenting judge, Debra Ann Livingston, who was appointed by Pres. G.H.W. Bush, “wrote in her dissent,” reports Mr. Johnson, that it was “‘surprising’” to view as “‘“patently offensive” … a proposed custom plate depicting a sun and two smiling children and bearing the words ‘Choose Life.’”

Elections matter, especially for offices where the winners have the power to name or to confirm life-time appointees to what is becoming an increasingly autocratic branch of government, the federal judiciary.

The Inhumanity of Pain in the Unborn Child

Major excerpts from transcript of interview by Point of View radio talk host Penna Dexter with David A. Prentice, PhD, vice president and research director of Charlotte Lozier Institute, the research arm of the Susan B. Anthony (SBA) List, excerpted from full transcript published by LifeSiteNews.com

Interviewer: … I don’t think there’s a doubt now that a fetus can feel pain at 20 weeks.

Dr. Prentice: The science is pretty conclusive at this point. And there are always going to be people, especially those in favor of abortion, who will say, “Oh that really doesn’t happen, and they’ll throw up a smokescreen. And what they usually do is, they refer to an old study back in 2005 that was published actually by people who had associations with Planned Parenthood and other abortion providers. But the real science – and there’s some new things in fact that have come out in the last few months – but the science pretty conclusively demonstrates: Young babies still in the womb at 20 weeks after conception – and probably even earlier – do indeed feel pain and in fact may feel more
intense pain than a newborn or an adult.

Interviewer: And that is because of their development?

Dr. Prentice: Exactly; they have a higher density of nerve receptors. … But there is another aspect. There are certain pathways that sort of tone down pain. If I hit my thumb with a hammer, I’m going to feel it because the pain sensation goes up to my brain, but there is also a return path to try and tone that down. That doesn’t even start to develop until about the time that you’re born, so you don’t get this dampening of the pain. In fact, there was a study done, reported just a couple weeks ago, where they were looking at pain experience of newborns – just between one and six or seven days old and adults, and the headlines were, “Babies feel pain like adults, and they feel it more intensely.” … You don’t develop this feedback loop to shut down pain until right about that time, and it takes even several months after birth for it to start to mature.

Now wind back the clock to five months after conception; you’re a little past halfway through development in mom’s womb. You don’t even have that feedback loop at all; it’s not starting until months later in your life – and now the pain is very intense. We don’t know exactly how much, but much more intense for the small amount that you might feel as an adult.

Interviewer: So one of the arguments that’s made is that at 20 weeks the baby doesn’t have a mature cerebral cortex. What do you say to that argument?

Dr. Prentice: … The cortex is sort of the outermost part that is, in terms of your conscious thoughts and so on, it’s the last part of the brain to develop. There is indication that some of that neuronal material in your brain is already present, starting to be formed certainly by 20 weeks after conception, but it also turns out that that’s not the most important part of your brain for pain perception. There’s another, deeper layer that forms early in your brain called the thalamus, deep inside your brain. It forms even earlier in development; probably about eight to 12 weeks is when you start to see it forming. And those nerve tracks already connect to the thalamus by the time you are 20 weeks after conception, or after fertilization.

In fact, there are individuals who are born without the cerebral cortex, and they feel pain; we know that for a fact. So you don’t need that cortical layer to actually feel pain. What you need are these deeper parts of the brain and simply the neural tracks for sensation. And those are definitely formed, intact and responding by 20 weeks after conception. …

Interviewer: If a scientist starts using terminology that you don’t really understand, then you get intimidated.

Dr. Prentice: Yes, people start throwing out these technical terms. … In fact, it wasn’t until probably the last 10 or 15 years that doctors really thought newborns even experienced pain, so they would be doing lots of procedures on them after birth, and they didn’t think that they could even receive pain at that point in time. Fast forward to where we are now, and starting about that time, fetal surgery started to come into vogue, where they are actually doing operations on these little ones while they’re still in the womb. … They give anesthetic and pain medicine directly to the unborn baby. It’s not relying just on an anesthetic for mom. …

Interviewer: It’s sort of amazing to me that the intent that the adults in the world have for this baby [has] everything to do with whether or not their pain is controlled, because at that point, when they are operated on, they are getting anesthesia. But if they are being aborted, they are going to feel the entire pain of that awful abortion; correct?

Dr. Prentice: Yes, that’s true, and it’s just an attitude. It’s how we view this little one; it’s the same person in there, but it’s just how we view their worth to us. … In fact, it’s interesting: The leading clinical anesthesia textbook says it’s clear that these little unborn babies can experience pain as early as 16 weeks after conception, definitely by 20. [It says] that these little unborn babies – they use the medical term “fetus” – that they are a patient, and that it is critical to administer anesthesia directly to them. … Again, these are little patients – very tender ones – and as we said, they can experience pain even more intensely than you or I do. [It’s] this attitude – that these are little persons of worth that we need to handle compassionately. They’re doing surgery for all sorts of … conditions now. … There are now almost a dozen or more special fetal surgery wings at major hospitals around the country. Again, it’s recognizing that these are patients and not some item to be discarded.

Interviewer: When Roe v. Wade was decided, they acted like there was some sort of a question about life and that this was a real baby. Pro-lifers knew; anybody who was a believer – a Christian – or had faith knew this was life, because God created this life in the womb, and we all knew that. But they were able to get away with [that question of life’s beginning when] they made [the Roe v. Wade] decision, and now … the science has shown us what’s there from such an early stage. I’ve got two grandchildren on the way, and I’ve been able to see the sonograms, and they are much clearer than the ones when I had my children. It’s so clear and obvious; the humanity is just obvious and clear now, and I think we are a little behind the curve almost in getting this fetal pain ban passed.

Dr. Prentice: We probably are, and it’s a matter that we need to keep educating people about the truth and the humanity of these little ones. You are right. It’s gone from back in those dark early days where we were told this was a blob of tissue to now these 4-D ultrasounds where you can see the little one in there smiling and waving at you as they do somersaults. I mean, it is amazing.

That brings up another point, too; another study from just last week. What do the courts look at in terms of this issue of abortion? That term “viability” often shows up. The Pain-Capable Unborn Child Protection Acts are not meant – at the federal or state level – to weigh in on that issue of viability and survival outside the womb. They are meant to show the humanity of that unborn child. But even in terms of viability, the New York Times – of all places – reported last week on a new scientific study out in the New England Journal of Medicine, and their focus was on survival of these little ones. Very, very premature babies – some as early as, yes, five months after conception, lining up just exactly with what these bills are going for – 20 weeks after conception. They are talking about how a number of these little ones even that early survive, and – lo and behold – if you actually intervene, care for them and try to keep them alive, many, many more of them survive.

It would seem to be common sense that, yes, if we actually do something to help you breathe or live, you’ll survive. I just want to point out that these are little lives. That there is humanity of this little person, and we need to focus on that and preserve those lives.