Scott Roeder shot Wichita’s late term abortionist George Tiller May 31, 2009. Below is Part Two of a discussion draft of his appeal to the U.S. Supreme Court. Here is Part One.
I invite your input. Where you disagree, I want to understand why. Where you suggest an improvement, I will incorporate it if I agree, or discuss it with you, and if we still disagree I will pass your suggestion to Scott for his verdict; it is his brief, and it must have his approval since he will have to personally submit it to the Court.
Reasons to grant the writ
No court has addressed whether Congress’ finding of fact, that all unborn babies are “members of the species homo sapiens” “at all stages of gestation”, makes abortion legally recognizable by federal courts as murder. This is “an important question of federal law that has not been, but should be, settled by this Court”.1
Here is where Roe v. Wade says (1) that is what must be “established” for legal aborticide to end, and for state courts to defend the lives of unborn babies; (2) in some way not specified, or by some authority or agency not specified – apparently not SCOTUS itself, this “establishment” of the unborn as humans/persons, to an extent that SCOTUS will legally recognize and honor it, is possible; (3) what must be “established” is a fact question about which the Roe court is in doubt – not a question of law, upon which SCOTUS is the world’s expert (this reading is reinforced by another quote below); (4) abortion’s “constitutional protection”, and even its very legality, can continue only in the absence of this “establishment” – it cannot be made an obstacle to “establishing” this fact; and (5) fact finders are invited to “establish” this fact if they can – although we are not told which of them, or how many of them, must agree before consider the fact established “enough”:
“If this suggestion of personhood [of unborn babies] is established, the…case [for legalizing aborticide], of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [14th] Amendment.” Roe v. Wade, 410 US 113, 156
Here is the relevant section where federal law “establishes” legal recognition of the unborn as humans/persons:
18 USC §1841(d) …the term “unborn child” means a child in utero, and the term “child in utero” or “child, who is in utero” means a member of the species homo sapiens, at any stage of development, who is carried in the womb.
Here is where Roe equates “recognizably human” with 14th Amendment “persons”. This disposes of any legalistic claim that federal law doesn’t meet Roe’s requirement because it uses a different word:
These disciplines variously approached the question [of when life begins] in terms of the point at which the embryo or fetus became “formed” or recognizably human, or in terms of when a ‘person’ came into being, that is, infused with a ‘soul’… Roe v. Wade 410 U.S. 113, 133 (1973)
Here is where Roe treats “when life begins” – a.k.a. when 14th amendment Right to Life protection must begin, or when “personhood” begins – as a fact question concerning which doctors and preachers are more knowledgable than SCOTUS – not a question of law about which SCOTUS does not defer to preachers:
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. Roe v. Wade 410 US 113, 159
Is Congress’ finding of fact enough to “establish” that unborn babies of human mothers are humans to SCOTUS’ satisfaction, considering the high regard SCOTUS has for Congressional findings of facts?
…the existence of facts supporting the legislative judgment is to be presumed…not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators….the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist. …But by their very nature such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it. U.S. v. Carolene Products, 304 U.S. 144, 152 (1938)
If not, how much more “establishment” is necessary before it will satisfy SCOTUS? This is a corollary “important question of federal law that has not been, but should be, settled by this Court”.
Congress was not the first court-recognized fact finder to “establish” this crucial fact, but was only the final vote after the other three categories of court-recognized fact finders – juries, state legislatures, and expert witnesses – had already spoken unanimously.
State legislatures. “At least 38 states have enacted fetal-homicide statutes, and 28 of those statutes protect life from conception.”2 Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012) This includes my state, Kansas, which so found in 2007.
“ ‘Unborn child’ means a living individual organism of the species homo sapiens, in utero, at any stage of gestation from fertilization to birth.” K.S.A. 21-3452
Most of them have had their constitutionality challenged, which all of them survived.3
Is that enough? Is still more “establishment” of the fact that unborn babies of human mothers are humans necessary? SCOTUS has never said how much is enough.
Juries. How about when so many juries virtually unanimously rule that abortion is a great harm, in abortion prevention trials, that judges feel compelled to stop informing juries that the defendants have a defense? Is the virtually unanimous consensus of Triers of Fact, while they were informed of the issue, enough?
After the court ruled that it would allow the [Necessity] Defense to go to the jury, the Women for Women Clinic dropped the prosecution. If the defense is permitted, evidence is introduced that life begins at conception. This evidence is rarely contradicted by the prosecution, which is merely proving the elements of criminal trespass. Rather than risk such a precedent, many clinics prefer to dismiss. In fact, defense counsel have admitted that their intent is to bring the abortion issue back before the United States Supreme Court to consider the very question of when life begins, an issue on which the Court refused to rule in Roe… (“Necessity as a Defense to a Charge of Criminal Trespass in an Abortion Clinic”, 48 U.Cin.L.Rev. 501 (1979), in a footnote on page 502. The Cincinnati Law Review footnote analyzes the case of Ohio v. Rinear, No. 78999CRB-3706 (Mun. Ct. Hamilton County, Ohio, dismissed May 2, 1978)
By calling the goal of triggering Roe’s “collapse” clause through jury verdicts and appeals an “admission”, this law review author treats the resort to our legal system as some sort of nefarious scheme which the clever author has finally exposed. The readiness of juries to acknowledge harm to occupants of wombs as something very grave is described here as a “catch 22” for judges whose only recourse against this obviously unjust result is to stop allowing juries to be informed about the only contested issue of their trials (the fact issue: the nature of the unborn).
Whatever the merits of keeping juries uninformed about what usually in abortion prevention cases is the only seriously contested fact issue, this law review article documents the virtual consensus among juries in a view of the unborn quite different than that of appellate courts – a pattern otherwise difficult to survey because juries don’t often explain their decisions.
(A handful of district judges in bench trials have similarly acquitted abortion preventers via the Necessity Defense, including Wichita District Judge Paul Clark, who was reversed by the same ruling cited to deprive me of my defense by the Kansas trial and appellate courts: City of Wichita v. Tilson, 855 P.2d 911 (Kan. 1993).)
The point of this evidence is that to the extent Triers of Facts have been allowed to weigh the Comparison of Harms/Choice of Evils, they have almost unanimously found much greater value in the residents of wombs than in the alleged “constitutional right” to kill them. At least this article comes as close to documenting this pattern as any way I know to test the proposition. I personally know people who have been found innocent by such juries.
Is this enough to “establish” what Roe said must be “established” for legal abortion to “collapse”? Is the majority of states explicitly finding that all unborn babies are humans/persons from conception, uncontested by any court-recognized fact finder, along with the consensus of Triers of Fact, enough? SCOTUS has not answered this question.
Expert witnesses. A third category of court-recognized fact finders is expert witnesses. As the preceding Cincinnati Law Review article reported, it was typical of abortion prevention trials to bring in a doctor to testify how profoundly fully distinct human life begins from conception. No one ever disputed it. The fact was even introduced in my trial – by the prosecution’s witness, questioned by the prosecution!
(Volume 11, 52:2 of the transcript)
Ms. PARKER: Please explain for us what DNA is and how it is used?
STEADMAN: DNA stands for deoxyribonucleic acid. It’s often referred to as the building block of life because it’s a chemical molecular structure that encodes for the individuals that we are.
The DNA that we type in the Sedgwick County laboratory is found within the central compartment of the cell, called the nucleus. And I often preface my explanation about DNA typing with a straightforward example of a mother, a father and a child. And if you think about the father and the mother and one cell in the father’s body, that cell would contain 46 packages of DNA, or 46 chromosomes, and you could think of it as two sets of 23, because 23 plus 23 is 46.
Likewise, in a single cell of the mother’s body, there are the same number of chromosomes. When a sperm cell unites with an egg cell, this gives rise to the child, and that set of DNA from that original cell, cell division occurs and the DNA that was inherited from the father and the mother is copied into the other cells of the offspring. (Shelley Steadman is “the forensic biology and DNA laboratory manager at the Regional Forensic Science Center here in Sedgwick County”, (Vol 11, p. 49)
Even this controversial, absolutist prolife position is documented as reasonable and factual by the state’s witness. How much more reasonable should the Court consider the far less controversial belief that an 8-month baby killed in an illegal late term abortion is a “third person”?
When the defense alleges those I saved were “third persons” and the prosecution assists by presenting evidence of the same by an expert witness, we are very close to a stipulation. All that is missing are official signatures.
There have been tens of thousands of abortion prevention trials, most of whom featured expert witnesses documenting the reality that the unborn babies of human mothers are humans. Is their unanimous, undisputed testimony, enough? Along with Triers of Facts, and states? SCOTUS has never said.
When Congress affirmed the same fact in 2004, that was the concurrence of the fourth and final category of court-recognized finders of facts. All the votes are in. They are unanimous and undisputed. It is not possible for any fact to be any more overwhelmingly legally recognized in America. If any “establishment” of this life-and-death fact can satisfy SCOTUS, this must, because no greater “establishment” of a fact is possible than the unanimous, undisputed concurrence of all court-recognized fact finders. Not even one single court-recognized fact finder positively asserts that unborn babies are not humans/persons. I can’t imagine any such legal authority with the courage to assert such a thing. It is astonishing enough that some hold their head high as they publicly insist they cannot tell. Most aborticide supporters manage the problem by imagining it doesn’t matter, according to Roe.
To the overwhelming consensus of all court-recognized fact finders since Roe, that the babies of humans are humans/persons from conception, must be added the evidence, and near-consensus of scholars, that court-recognized fact finders before Roe concurred with those after, and that Roe’s history of them to the contrary, which was Roe’s justification for doubting unborn personhood, was erroneous.
This scholarly discussion is so well known that I can cite common knowledge. But just to have a sample of it in this brief, here are excerpts from the recent Alabama case, Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012):
A. Roe misstated the protection of the unborn child under the common law.
Roe ‘s viability rule was based, in significant part, on an incorrect statement of legal history. The Supreme Court in Roe erroneously concluded that “the unborn have never been recognized in the law as persons in the whole sense.” 410 U.S. at 162. Roe also referred to “the lenity of the common law.” 410 U.S. at 165. However, scholars have repeatedly pointed to inaccuracies in Roe ‘s historical account since Roe was decided in 1973.4 “[T]he history embraced in Roe would not withstand careful examination even when Roe was written.” Joseph Dellapenna, Dispelling the Myths of Abortion History 126 (Carolina Academic Press 2006).
Sir William Blackstone, for example, recognized that unborn children were persons. Although the Court cited Blackstone in Roe, it failed to note that Blackstone addressed the legal protection of the unborn child within a section entitled “The Law of Persons.” It also ignored the opening line of his paragraph describing the law’s treatment of the unborn child: “Life is an immediate gift of God, a right inherent by nature in every individual.” 1 William Blackstone, Commentaries on the Laws of England *129.5 As Professor David Kadar noted in 1980, “Rights and protections legally afforded the unborn child are of ancient vintage. In equity, property, crime, and tort, the unborn has received and continues to receive a legal personality.” David Kadar, The Law of Tortious Prenatal Death Since Roe v. Wade, 45 Mo. L.Rev. 639, 639 (1980) (footnotes omitted).
B. Roe misstated the protection of the unborn child under tort law and criminal law.
Professor Kadar and others have pointed out “the mistaken discussion within Roe on the legal status of the unborn in tort law.” Kadar, 45 Mo. L.Rev. at 652. The Court’s discussion in Roe of prenatal-death recovery “was perfunctory, and unfortunately largely inaccurate, and should not be relied upon as the correct view of the law at the time of Roe v. Wade.” 45 Mo. L.Rev. at 652–53. See also William R. Hopkin, Jr., Roe v. Wade and the Traditional Legal Standards Concerning Pregnancy, 47 Temp. L.Q. 715, 723 (1974) (“[I]t must respectfully be pointed out that Justice Blackmun has understated the extent to which the law protects the unborn child.”).
Roe ‘s adoption of the viability standard in 1973 did not reflect American law. Viability played no role in the common law of property, homicide, or abortion. Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U.L.Rev. 563, 569 n. 33 (1987). And there was no viability standard in wrongful-death law because the common law did not recognize a cause of action for the wrongful death of any person. Farley v. Sartin, 195 W.Va. at 674, 466 S.E.2d at 525 (“At common law, there was no cause of action for the wrongful death of a person.”); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 127, at 945 (5th ed. 1984) (“The common law not only denied a tort recovery for injury once the tort victim had died, it also refused to recognize any new and independent cause of action in the victim’s dependants or heirs for their own loss at his death.”).
The viability standard was introduced into American law by Bonbrest v. Katz, 65 F.Supp. 138 (D.D.C.1946), the first case to recognize a cause of action for prenatal injuries. Bonbrest implied that such a cause of action would be recognized only if the unborn child had reached viability. 65 F.Supp. at 140.
Viability was initially adopted by courts in prenatal-injury law, but its influence was waning by 1961. See Daley v. Meier, 33 Ill.App.2d 218, 178 N.E.2d 691 (1961) (holding that an infant born alive could recover damages for injuries suffered before viability); see also Note, Torts—Extension of Prenatal Injury Doctrine to Nonviable Infants, 11 DePaul L.Rev. 361 (1961–62). One thorough legal survey of prenatal-injury law a decade before Roe was decided concluded that “[t]he viability limitation in prenatal injury cases is headed for oblivion. Courts are coming to realize that it is illogical and unjust to the children affected and not readily amenable to scientific proof.” Charles A. Lintgen, The Impact of Medical Knowledge on the Law Relating to Prenatal Injuries, 110 U. Pa. L.Rev. 554, 600 (1962).
….Since Roe was decided in 1973, advances in medical and scientific technology have greatly expanded our knowledge of prenatal life. The development of ultrasound technology has enhanced medical and public understanding, allowing us to watch the growth and development of the unborn child in a way previous generations could never have imagined. Similarly, advances in genetics and related fields make clear that a new and unique human being is formed at the moment of conception, when two cells, incapable of independent life, merge to form a single, individual human entity.6 Of course, that new life is not yet mature—growth and development are necessary before that life can survive independently—but it is nonetheless human life. And there has been a broad legal consensus in America, even before Roe, that the life of a human being begins at conception.7 An unborn child is a unique and individual human being from conception, and, therefore, he or she is entitled to the full protection of law at every stage of development.
Here is where Roe says its subsequently much criticized legislative history was much of the basis for its alleged doubt about “when life begins”:
“…the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn …[exceptions] would appear to be [designed] to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. …In short, the unborn have never been recognized in the law as persons in the whole sense. Roe v. Wade: 410 U.S. 113, 161.
The correct legislative history is “an important question of federal law that has not been, but should be, settled by this Court”.8 The criticism of legal scholars merits a response. Especially for so long as the loss of millions more lives remains justified by these errors.
Roe’s alleged ignorance was also much based on a brief survey of the treatment of the unborn by religions, even taking encouragement from the fact that many savage religions of ancient times had no problem with murdering unborn babies. Which seems an undesirable precedent for a free people, since those religions had no problem with murdering adults, either. Or even brutally “sacrificing” them.
But Roe thought its ignorance vindicated by elements within Christianity and Judiasm too.
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….There has always been strong support for the view that life does not begin until live birth….It appears to be the predominant, though not the unanimous, attitude of the Jewish faith.9 It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family.10 The Aristotelian theory of “mediate animation,” that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this “ensoulment” theory from those in the Church who would recognize the existence of life from the moment of conception. Roe v. Wade, 410 U.S. 113, 159-161
Roe’s treatment of Christianity and Judiasm makes a common but fatal mistake to understanding either. It looks at how men choose to respond to the Truth, and ignores what the Bible, whom these men profess to be their supreme authority, says is true.
The Jewish religion is not understood by taking a poll of how people live who self-identify as Jews. It is understood by reading the Scriptures which unite them as much as anything does. But many Jews don’t even believe the Scriptures; they call themselves “secular Jews”. So limiting your understanding of the Jewish religion to human opinion will guarantee misunderstanding. If you want to justify baby killing by what “Judiasm believes”, you can’t rule their Scriptures irrelevant.
It is the same with the Christian religion. You will find varying opinions in various churches about how Christians ought to respond to abortion. But you will not find, even where those statements conflict, significant disagreement about what various verses say about the unborn. Those who base their positions on a careful reading of Scripture pretty much agree. Those who don’t, are no guide to understanding Christianity. SCOTUS can’t rule analysis of the Bible irrelevant, and expect to understand the religions who revere it.
Roe has made the position of Christianity and Judiasm about “when life begins” relevant to its definition of which human beings are allowed to live. Roe has thus made the true position of the Bible relevant to “an important federal question which has not been decided but which should be decided.” Yet Roe did this without quoting a single Bible verse, producing an egregious distortion. SCOTUS should correct this misinformation, either by conceding that it actually cares nothing at all what the Bible says about who should be allowed to live, or by weighing a proper analysis with actual Bible references.
Psalm 139 says David’s human life began before his tiny body had arms and legs. Even before conception. Way before human law recognized him, God recognized him as a human/person.
Psalm 139:13-16 You created every part of me; you put me together in my mother’s womb. I praise you because you are to be feared; all you do is strange and wonderful. I know it with all my heart. When my bones were being formed, carefully put together in my mother’s womb, when I was growing there in secret, you knew that I was there—you saw me before I was born. The days allotted to me had all been recorded in your book, before any of them ever began. GNB
Luke 2 says that in the womb, a baby (1) can hear voices; (2) can sense the difference between a voice sweet with blessing and a voice coarse with cursing; and (3) can choose which kind of voice to get excited about. (Mary, in whom Jesus had just been conceived, visited Elizabeth, who was six months pregnant with John the Baptist.)
Luke 1:39 And Mary arose in those days, and went into the hill country with haste, into a city of Juda; 40 And entered into the house of Zacharias, and saluted Elisabeth. 41 And it came to pass, that, when Elisabeth heard the salutation of Mary, the babe leaped in her womb; and Elisabeth was filled with the Holy Ghost: 42 And she spake out with a loud voice, and said, Blessed art thou among women, and blessed is the fruit of thy womb. 43 And whence is this to me, that the mother of my Lord should come to me? 44 For, lo, as soon as the voice of thy salutation sounded in mine ears, the babe leaped in my womb for joy. KJV
A few verses before that tell us that even from the womb, a baby has a soul for the Holy Spirit to fill:
Luke 1:15 For he shall be great in the sight of the Lord, and shall drink neither wine nor strong drink; and he shall be filled with the Holy Ghost, even from his mother’s womb.
Saline abortions, which burn babies alive with acid which blackens over half their skin while destroying the lungs, are our cultural equivalent of the pagan god Molech, into whose red hot brass arms worshipers threw their children, whose screams were covered by the priests’ drums. Today we similarly have what was given as the name of a video of the first ultrasound of an abortion: “The Silent Scream.” God said this is so barbaric that He never even imagined such a thing. This is a remarkable idea for those who believe God foresees every detail of what evils men will do, but all translations and commentators seem to agree on the meaning of the verse.
Jeremiah 32:35 And they built the high places of Baal, which are in the valley of the son of Hinnom, to cause their sons and their daughters to pass through the fire unto Molech; which I commanded them not, neither came it into my mind, that they should do this abomination, to cause Judah to sin.
God also has something to say about how we should respond to abortion. This verse was in Operation Rescue’s masthead, until 1993 when the first abortionist was shot. The scenario is where murderers have so much power over their victims that they can “lead them away” to kill them in their favorite killing place, and by a schedule known to others. That pretty much limits the scenario to government-protected murders.
Proverbs 24:10 If you faint in the day of adversity, your strength is small. 11 Rescue those who are being taken away to death; hold back those who are stumbling to the slaughter. 12 If you say, “Behold, we did not know this,” does not he who weighs the heart perceive it? Does not he who keeps watch over your soul know it, and will he not repay man according to his work? ESV
The only actual citation of any Bible verse in Roe is to Exodus 21:22, in footnote 22. Roe says the verse “may have” influenced Augustine! What was the point of adding such a speculation if it can’t even be documented that Augustine thought about it? Was it an attempt to stick a verse into the record that some have thought minimizes the value of the unborn, even though most do not? It is the practice of cults to use the most obscure or ambiguous verse they can as a wedge to get Doubt’s foot in the door. Here is the verse:
Exodus 21:22 And when men fight, and they strike a pregnant woman, and her child goes forth, [literally “so her children come out”] and there is no injury, being fined he shall be fined. As much as the husband of the woman shall put on him, even he shall give through the judges. (Literal Translation of the Holy Bible)
The uncertainty is whether “there is no injury” means “no injury to either the mother or the child”, or only “no injury to the mother – who cares about the child?”
Commentator John Gill (1690-1771) notes places in the talmud that are concerned only for the women, but he notes that the verse itself applies also to the unborn babies:
and yet no mischief follow: to her, as the Targum of Jonathan, and so Jarchi and Aben Ezra restrain it to the woman; and which mischief they interpret of death, as does also the Targum of Onkelos; but it may refer both to the woman and her offspring, and not only to the death of them, but to any hurt or damage to either of them: now though there was none of any sort: John Gill’s Exposition of the Entire Bible
Commentator Adam Clark (1715-1832) understands it to protect the mother and child alike:
But if mischief followed, that is, if the child had been fully formed, and was killed by this means, or the woman lost her life in consequence, then the punishment was as in other cases of murder – the person was put to death; Adam Clark’s Commentary on the Bible:
The Bible Knowledge Commentary is emphatic that the child’s life is revered as much as the mother’s. Commentaries since 1973 take a position on abortion.
21:22–25. If … a pregnant woman delivered her child prematurely as a result of a blow, but both were otherwise uninjured, the guilty party was to pay compensation determined by the woman’s husband and the court. However, if there was injury to the expectant mother or her child, then the assailant was to be penalized in proportion to the nature of severity of the injury. While unintentional life-taking was usually not a capital offense (cf. vv. 12–13), here it clearly was. Also the unborn fetus is viewed in this passage as just as much a human being as its mother; the abortion of a fetus was considered murder.11
Wiersby sees no uncertainty that the unborn are as revered as the born:
Verses 22–23 are basic to the pro-life position on abortion, for they indicate that the aborting of a fetus was equivalent to the murdering of the child. The guilty party was punished as a murderer (“life for life”) if the mother or the unborn child, or both, died. See also Ps. 139:13–16.12
Tyndale’s commentary sermonizes about it:
In the case of mothers and children, special laws were given to protect the helpless and innocent (21:22–25). If a man caused a woman to give birth prematurely but the infant was not harmed, then a simple fine was to be levied. If the child or mother was harmed, then the law of retaliation was applied. Punishment was restricted to that which was commensurate with the injury. In these verses God shows clear concern for protecting unborn children, a concern that people today would do well to heed. Surely the abortion of millions of unborn babies will fall under God’s condemnation.13
But the Faithful Life Bible seems to be pro-abortion:
21:22 as the judges determine Describes a situation where the woman who is injured survives the attack but her child does not. The penalty in such a case is a fine.
However, v. 23 says that if the woman is killed, the death penalty is prescribed. Consequently, the life of the adult woman was deemed of greater value than the contents of her womb. This passage is frequently used to justify abortion: the woman was viewed as a person; the child was not.14
The Hebrew text simply doesn’t specify that “if there is no injury” means to the child as well as to the mother; nor does it specify that it is only to the mother. The disagreement of translators and commentators is possible because of this textual ambiguity. Commentaries since 1973 face societal pressure to stay out of Roe’s way. Ancient Talmud entries likewise faced the social pressure of the ever present Molech worship surrounding Israel, and too frequently invading Israel. Jesus’ metaphor for Hell was the “valley of Tophet” just outside Israel where children were once sacrificed.
I would submit that while the text may be unclear, the context is certainly clear. From “be fruitful and multiply”, Genesis 1:28, to “As arrows in the hand of a mighty man, so are the sons of the young. Blessed is the man who has filled his quiver with them….”, Psalm 127:4-5, and all the laws in between about the importance of an inheritance, it is inconceivable that anyone in Moses’ time could be apathetic about a miscarriage! The translations that leave this idea implied but not specified are MKJV, RV, YLT, GW, ISV, JPS, KJV, ABP, ASV, ESV, NLT, NIV84, NASB95, HCSB, NCV, TNIV, CPB, NirV. However, these translations limit concern to the mother: BBE, “causing the loss of the child, but no other evil comes to her”; CEV, if she “suffers a miscarriage” but “isn’t badly hurt”; DRB “and she miscarry indeed, but live herself”; ERV “If the woman was not hurt badly”; and Message “so that she miscarries but is not otherwise hurt”.
The Brenton translation expresses concern only for the baby: “And if two men strive and smite a woman with child, and her child be born imperfectly formed, he shall be forced to pay a penalty….”
What theologians are less likely than lawyers to consider about this verse is the difficulty of assessing criminal intent in this situation. Two men are fighting, and a woman gets hit. What is she doing there? Did she have any responsibility for getting out of the way? When the man hit her, was he actually aiming at her or was he just struggling against the other man? If he deliberately hit her, was he just defending himself against her attack, or was he deliberately aiming at the womb? These are questions for a jury to weigh. They are factors that could make a penalty greater for harm to the mother than for the child, or vice versa, depending not on their relative human worth but on where the culpability was focused.
It would appear obvious and irrefutable that abortion has been legally recognizable as murder since April Fool’s Day, 2004, waiting only for some court to acknowledge that new legal reality; so that all of George Tiller’s abortions should have been legally recognized as unlawful (not just those for which he was actually prosecuted), and so that by every formulation of the Necessity Defense/Choice of Evils, I saved thousands of lives by stopping their unlawful murders, and thus am innocent of any public offense.
This impression is encouraged by the refusal of trial and appellate courts to acknowledge the existence of this issue even though it was virtually the only contested issue of my trial and was my key defense.
At the least, this question must be acknowledged as reasonably raised. Questions reasonably asked but never answered don’t go away. Suspicion can’t help but grow that the reason they are not answered is that they are irrefutable, and they are a window to a reality that those questioned would rather shut. The longer any question reasonably raised remains unanswered, the more potential it acquires to undermine confidence in those questioned. Especially when it involves the very legal definition of which Human Beings have a right to live.
This makes the question “an important question of federal law that has not been, but should be, settled by this Court”.15