Life Advocacy Briefing

December 3, 2018

The Call of the Beating Heart / Enshrining Abortion
Of Course It’s Offensive! / Bringing Logic & Reality to the Court

The Call of the Beating Heart

THE HEARTBEAT BILL IS POISED TO PASS IN OHIO, pending a vote in the State Senate, where Republican members outnumber Democrats by 23 to 9; most Republican lawmakers typically vote “pro-life,” and the overwhelming GOP majority gives pro-life advocates great hope that the groundbreaking measure would not only pass but do so by a veto-proof majority, as occurred in the House, where “Heartbeat” passed 60 to 35 on Nov. 15, with two Democrats voting in its favor.

The so-called “Heartbeat bill” would outlaw abortions on babies whose gestation has advanced to the point of a detectable heartbeat, about seven to eight weeks. After all, social convention puts a conclusive mark on the detection of a heartbeat: Life is present, whether at its end or its beginning. Consequently, those Life advocates who advance Heartbeat legislation are asking the public to recognize what they have long known: This is a living human being, entitled to acknowledgment and therefore protection.

“Senate President Larry Obhof [R] said he believes the bill has the votes to pass,” reports Calvin Freiburger for, though he was “unsure whether it will receive the 20 needed for a veto override.”

Why all the talk about veto override, when Ohio has a pro-life governor, Republican John Kasich?

If it indeed goes to the governor’s desk during this post-election session, its passage will constitute the second time Heartbeat has met John Kasich, and the first time, he did cast a veto to block it in 2016, expressing concern that it would surely be struck down in court and thus constituted a liability for taxpayers, confident that the abortion lobby would surely seek an immediate injunction against its enforcement. He has publicly opposed resuming consideration of the far-reaching proposal.

“Pro-lifers argue,” notes Mr. Freiburger, “the bill’s chances have improved thanks to Pres. Donald Trump’s Supreme Court nominees.” Though Justices Gorsuch and Kavanaugh have yet to be tested – as Supreme Court justices – on abortion questions, they are believed to be strict constructionists who have demonstrated an ability in the past to comprehend the meaning of the Constitution itself, giving pro-life citizens hope that they could see in legislation such as Heartbeat a constitutional protection for the right to life.

“Currently, the strongest state-level protections for pre-born babies,” notes Mr. Freiburger, “are Iowa’s Heartbeat abortion ban and Mississippi’s 15-week abortion ban, both of which are currently tied up in the courts. The Ohio measure,” he writes, “is all but certain to face a similar legal challenge, but several pro-lifers, such as [US] Rep. Steve King of Iowa, argue that now is the time to press such a legal battle.

“The US Supreme Court has repeatedly upheld Roe v. Wade since 1973 and has not yet upheld any pre-viability abortion bans, but Heartbeat supporters argue,” writes Mr. Freiburger, that the appointment of “Justice Brett Kavanaugh to replace the pro-abortion Justice Anthony Kennedy has shifted the Court’s ideological balance to the point where the pro-life cause has a fighting chance.”

We would argue that the high court’s current composition could lead to upholding many state abortion restrictions regardless of whether the Court formally overturns Roe v. Wade and/or Doe v. Bolton in the near future. The Court’s clearance of the federal partial-birth abortion ban – even with Justice Kennedy on the bench – suggests the Court can work around Roe and Doe if it so chooses, on the way to ultimate reversal of the two echoes of the 19th-century Dred Scott “precedent.”

The post-election push for Heartbeat, should it fall short of override strength, is at worst a precursor to consideration again next year, when former US Sen. Mike DeWine will take office as governor after eight years as Ohio Attorney General. The father of eight has consistently stood out as an advocate for Life in his decades of public service and has, according to Mr. Freiburger, “previously said he supports the bill, making it likely to pass next year even if [Gov.] Kasich kills it in the coming weeks” and an override effort were to fail. Senate President Obhof implied in a Columbus Dispatch interview, cited by Mr. Freiburger, that the legislature might defer to renewed consideration in 2019 out of anticipation that the incoming governor might “‘want to work with us on those issues in January. … Are these things better dealt with right now, even though we will have to push back on the governor, or could they just as easily be done on Jan. 20?’”

Enshrining Abortion

THE CONFIRMATION OF JUSTICE BRETT KAVANAUGH is leading states whose legislatures are less open to the American principle of offering protection for innocent human beings to step up their anti-Life actions. Case in point: New Mexico.

As is the case in many states, New Mexico still has an abortion ban on the books since before the Supreme Court’s 1973 anti-Constitutional edicts. The Supreme Court’s Roe/Doe rulings have prevented its enforcement for the past 45 years, but it is still in the statutes, dormant.

But “abortion advocates are panicking that the end of Roe v. Wade is imminent,” writes Cassy Fiano-Chesser for Live Action. “New Mexico State Rep. Joanne Ferrary [D] is leading the fight to overturn the state’s abortion ban, which was put into place in 1969 … . The statute makes it a felony for an abortionist to commit an abortion except in case of rape, birth defects or a threat to the mother’s life.”

Since 1973, notes Mrs. Chesser, “New Mexico has gone on to have some of the most liberal abortion laws in the country, with abortion permitted through all nine months of pregnancy for various reasons – and without parental notification. Overturning the [1969] statute would officially protect abortion in New Mexico if Roe v. Wade [were] overturned,” she writes.

New Mexico’s incoming governor, now-US Rep. Michelle Lujan-Grisham, House Speaker Brian Egolf and Senate Majority Leader Peter Wirth “all support the repeal,” writes Mrs. Chesser, “and have said it is a high priority for the [legislative] session beginning in January;” all are Democrats.

“Republicans, however, are intending to fight the measure,” reports Live Action, “despite their minority status in the state legislature. ‘The big problem we have with that is, it does away with conscience clauses for doctors that have moral disagreements with performing abortions,’ House Minority Whip Rod Montoya said,” quoted by Mrs. Chesser.

Regardless of whether the Supreme Court actually overturns Roe v. Wade, “In New Mexico, at least, it appears that abortion may unfortunately continue to be inflicted on women and their preborn children,” writes Mrs. Chesser, thanks to the panic of the abortion lobby in the liberal state.

Abortion sanctuary legislation has already passed in some other states, notably Illinois, where the GOP governor’s signature on the disgraceful repeal was one of the major causes of his November defeat.

“As of now, nine states, including New Mexico, have laws that would ban abortion,” writes Christine Rousselle for Catholic News Agency. “Four additional states – Louisiana, Mississippi, North Dakota and South Dakota – have what are known as ‘trigger laws’ that would ban abortion if the Roe decision were overturned. … Until July,” she reports, “Massachusetts had a 19th-century law on the books that made the act of ‘procuring a miscarriage’ illegal. Similar to New Mexico’s law, this has not been enforced since 1973.”

The abortion lobby’s attempts to repeal the New Mexico law have failed during the terms of outgoing GOP Gov. Susana Martinez.

Of Course It’s Offensive!

Nov. 21, 2018, BreakPoint commentary by John Stonestreet & G. Shane Morris

            It’s hard to tug on people’s heartstrings when your business is stopping hearts. In spite of this, abortion providers like Planned Parenthood have made a number of disastrous attempts to pull this off. There was the commercial last year by Avengers director Joss Whedon that suggested if your local Planned Parenthood clinic closed down, women would die, lose their jobs and not be able to go to college.

            Before that, there was a series of city-sponsored ads in New York subways featuring grouchy looking babies with captions like, “Got a good job? I cost thousands of dollars each year.”

            But I think the most tone-deaf and anti-baby pro-abortion ad ever made showed up on social media earlier this month. The video, which was actually produced a couple of years ago by a left-wing political group called The Agenda Project, features a cooing baby girl serenaded by a Brahms lullaby, accompanied by the captions: “She deserves to be loved. She deserves to be wanted. She deserves to be a choice.”

            Apparently, I wasn’t the only one who immediately thought that this video must be satire. But it’s not. The Agenda Project is a real organization that has influenced national politics in the past with over-the-top ads. Remember that bizarre, disturbing commercial from 2011 that featured a Paul Ryan lookalike throwing a wheelchair-bound grandmother off a cliff?

            Many have mistakenly concluded that the “she deserves to be a choice” ad was sponsored by Planned Parenthood, since it closes with “#Stand with PP.” To be clear, Planned Parenthood wasn’t involved in the production. Still, the video is in line with a long tradition of gruesome, outrageous and downright self-destructive messaging by abortion-rights activists.

            For example, comedienne Sarah Silverman’s remark earlier this year that pro-life laws make her want to eat an aborted fetus; Mary Elizabeth Williams’ Salon article entitled “So What If Abortion Ends Life?” and the “Shout Your Abortion” campaign, which aims to normalize abortion by encouraging women to proudly tell their stories.

            This isn’t what we at BreakPoint call “nut-picking” (you know, seeking out only the craziest examples from the fringe of the pro-choice movement). As we’ve pointed out before, there’s been a marked and discernible shift in abortion-rights rhetoric from treating abortion as something that ought to be “safe, legal and rare,” to promoting and even celebrating it in the most in-your-face ways possible. I even wondered aloud if there’s a pro-life troll running Planned Parenthood’s Twitter feed, given their blindly ironic tweets.

            What I think we’re seeing is an increasingly desperate and embattled pro-abortion movement. And it makes sense … Imaging technology is ever-improving; neonatal and prenatal medicine are breaking new frontiers almost daily. High-profile cases like Kermit Gosnell’s “house of horrors” reveal what the abortion industry has become.

            In light of all this, it’s increasingly difficult to buy the tired old pro-abortion lines that the unborn are “clumps of tissue” and that abortion is “women’s health care.” In our age of 3-D ultrasounds, we know exactly what abortion is and whom it kills.

            The kind of unwitting honesty revealed by the revolting messaging coming from modern abortion defenders these days needs to be shared widely. They must now make their case to a public more aware than ever of the humanity of the unborn. When scare tactics and bad comedy don’t work, we see the deadly logic of abortion: A beautiful, giggling baby that, we are told without a trace of remorse, “deserves to be a choice.”

            No, she deserves to live. But a movement that tries to make death look and sound like a loving choice, deserves to die.

Bringing Logic & Reality to the Court

Nov. 21, 2018, Report by Dave Andrusko in National Right to Life News Today

            Last month, NRL News Today reported that pro-lifers in Indiana were congratulating Atty. Gen. Curtis Hill, who was asking the Supreme Court to review and reverse a 2017 decision by Judge Tonya Walton Pratt which had been upheld in a split 2-1 decision last April by a panel of the 7th US Circuit Court of Appeals.

            Judge Pratt, an Obama appointee, overturned HEA-1337, the state’s law banning abortion for the sole reason of the child’s race, sex, national origin or a potential disability such as Down syndrome.

            The bill had been signed into law in 2016 by then-Gov. Mike Pence. Planned Parenthood and the American Civil Liberties Union [ACLU] then brought a lawsuit against HEA-1337.

            Last week a coalition of 18 state attorneys general, led by the Wisconsin AG, along with the Governor of Mississippi, filed a 38-page friend of the court (“amicus”) brief asking the High Court to uphold HE-1337 – the “Dignity for the Unborn Act.”

            Right out of the box, the amicus brief declares: “The 7th Circuit’s decision below contains two holdings that, especially when taken together, exhibit an unprecedented, unlawful hostility to the states’ authority to honor human life and dignity.”

            Referring specifically to the anti-discrimination provisions of HE-1337, the amicus notes that the 7th Circuit panel invalidated the provision which “prohibits the elimination of classes of human beings through discriminatory abortion based upon race, gender and disability because, in the 7th Circuit’s view, [the 1992] Casey [Supreme Court decision] foreclosed any prohibition on pre-viability abortions, no matter the interest being sought, no matter how carefully tailored the law. But the plaintiffs in Casey specifically declined to challenge Pennsylvania’s discriminatory-abortion prohibition, and this Court, accordingly, did not rule upon that prohibition. Nevertheless, the 7th Circuit concluded that Casey controlled the outcome in this case because, in the 7th Circuit’s view, Casey enshrined the right to pre-viability abortion as ‘categorical.’ But this [Supreme] Court has never declared any right to be ‘categorical,’ and Casey itself upheld one type of pre-viability abortion prohibition. Under a proper understanding of Casey’s undue-burden test, the Antidiscrimination Provision furthers the State’s compelling interest in prohibiting the discriminatory elimination of classes of human beings by race, gender or disability. This issue is ripe for this Court’s review, as [7th Circuit] Judge Easterbrook, joined by Judges Sykes, Barrett and Brennan, explained, the amicus argues both that [the] evil the Antidiscrimination Provision is intended to combat is ‘serious’ and that ‘Iceland is a canary in the coal mine.’”

            By that they are referring to the truth, proudly embraced by medical authorities in Iceland, that a positive test for Down syndrome results in abortion close to 100% of the time! The amicus also cites the rampant practice of sex-selective abortions in Asia, which has resulted in 100 to 160 million “missing” women.

            In its concluding paragraph, the brief explains why the prohibition must operate pre-viability:

“Finally, that Indiana’s Antidiscrimination Provision includes pre-viability abortions does not affect its Constitutionality, because the State’s interests do not correspond to the unborn child’s stage of development. In the traditional abortion regulation context, this Court has held that the State’s interest in protecting an unborn child’s life is ‘not strong enough’ to prohibit a pre-viability abortion. [See Casey] The logic is that the more developed the unborn child, the stronger the State’s interest in keeping that child alive. This reasoning has no applicability where the strength of the State’s interests does not correspond to the unborn child’s stage of development. The State’s interest is the prevention of the discriminatory elimination of classes of human beings; it makes no difference from the point of view of that interest if unborn children with Down syndrome are systematically eliminated at 10 weeks or 25 weeks, if the result is the same. Genetic screening for Down syndrome now regularly occurs ‘as early as 10 weeks’ into the pregnancy, well before the unborn child is viable. … So to prohibit effectively the discriminatory elimination of this class of society, the Provision must operate pre-viability.”

[Life Advocacy Briefing editor’s note: This appeal – and the explanation offered above via quotes from the amicus brief – shows, in our opinion, the kind of case on which the Kavanaugh appointment could make a significant difference in abortion law enactment and litigation, regardless of whether the Supreme Court is prepared to “overturn Roe” any time soon.]