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A Proposal to Amend the ABA Constitution to Defend Unborn Life

Edward Haskins Jacobs Esq.

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OrthodoxyToday reader Edward Haskins Jacobs is a lawyer who will present this proposal to amend the constitution of the American Bar Association to defend unborn life.

Report to the House of Delegates of the American Bar Association
by Edward Haskins Jacobs

On a Proposal to Amend the ABA Constitution
to Add this as a fundamental ABA purpose:

To defend the right to life of all innocent human beings,
including all those conceived but not yet born.

For consideration at the August 11 and 12, 2003 Annual Meeting

            The undersigned proposes that the American Bar Association Constitution, Article1, Section 1.2 - Purposes - be amended by inserting the following language (between the quotation marks) after the first semicolon: "to defend the right to life of all innocent human beings, including all those conceived but not yet born;".

           Article 1 of the ABA Constitution is entitled "Name and Purposes." Section 1.2 is entitled "Purposes." Once amended,section 1.2 would read in full as follows:

The purposes of the Association are to uphold and defend the Constitution of the United States and maintain representative government; to defend the right to life of all innocent human beings, including all those conceived but not yet born; to advance the science of jurisprudence; to promote throughout the nation the administration of justice and the uniformity of legislation and of judicial decisions; to uphold the honor of the profession of law; to apply the knowledge and experience of the profession to the promotion of the public good; to encourage cordial intercourse among the members of the American bar; and to correlate and promote the activities of the bar organizations in the nation within these purposes and in the interests of the profession and of the public. [The new language is inbold for the purpose of highlighting.]

           God willing, I will move for the adoption ofthis proposal at the House of Delegates in San Francisco in August 2003. I made the same motion before the House of Delegates the last two years in a row. Out of respect for the House I am starting off this fourth [1] report with a slightly fuller explanation as to why I am making the proposal again. First, as mentioned last year, just as the abolitionist, once rebuffed, is not going to say, "Oh, o.k., forget it;" here, innocent children's lives [2] are at stake, and I cannot forget them either. It is pretty obvious this is likely to have to be a long-term effort.

           Let's summarize the action taken by the Houseof Delegates with regard to this proposal in each of the last two annual meetings. In neither meeting was there an actual vote on the proposal. Both times, after the presentation of the proposal, the Standing Committee on Constitution and Bylaws reported to the House that the language of the proposal was inconsistent with another purpose of the ABA -- to uphold and defend the Constitution of the United States, and that therefore the proposal is "out of order." Both times then a motion was made [3] that the House postpone indefinitely action on my proposal.

           In 2001 the vote on the motion to postpone action indefinitely was 209 to 39, but you will never find the precise vote in the record of proceedings of that meeting, because even though the vote was displayed electronically on a large screen in the front of the room, theprecise vote itself was not recorded. In 2002, the vote on the motion to postpone indefinitely was taken by voice vote. [4] I heard a very loud extensive "yes," and perhaps three or four people said "no."

           I want to see the House pass this proposal, but I realize passage now would take a miracle. This was driven home in 2002 when new members of the House whohad never been members before stood up in order to be introduced to the assemblage. I believe there were only thirteen new members including eight alternates. It would seem, then, that the House of Delegates is a pretty closed club with lots of long-term members. In addition to looking for that miracle, I am also hoping that the consciences of a few of the members will be pricked enough that they will be willing to stand up in the House and speak out for the right to life of the innocents in the face of embarrassmentand possible ostracism. Even if I have no chance short of a miracle for passage of the proposal, if we can just get the ball rolling with a little bit of courage from members who agree, who knows? Maybe before too many more years baby-killing-in-the-womb will go the way of slavery. It could happen. So, onto the meat of the issue:

           Feminism - here meaning the conviction that women's government-enforced rights and privileges have been neglected in thepast and now need augmentation - begs the question, how far should women's "rights" go? If you are a mother with a child in your womb, and if bearing your child to term or keeping your child after birth would be embarrassing, inconvenient, career-killing, poverty-causing, husband-limiting, depressing, or physically more than normally risky, do you have the right to kill your child as a legally-approved exit from motherhood, as long as you do it before your child fully emerges from the protection of your body?

           Or does your child, by her mere humanity, have a sacrosanct right to live, and continue to develop and grow in liberty and pursue happiness as she comes to know it? The answer: Human life, including that of our littlest ones, is sacred. This realization was one of the greatest advances of Christianity over the paganism that condoned exposing unto death the unwanted child. Abortion, in our society, is quicker than exposure, and is hidden away in the womb (or at the end of the birth canal) so that we can lie to ourselves about what we are doing. Respect for human life is fundamental to civilized society, as "Thou Shalt Not Kill" signifies.

           At one time, apparently, we knew human life was sacred and to be defended against all competing claims of Our nation's declaration of birth - the Declaration of Independence of July 4, 1776 - set forth the raison d'etre for the United States of America as a separate nation. The Declaration asserted that it is self-evident that all men are endowed by their Creator with the unalienable right to life; and that governments are instituted among men to secure the rights to life, liberty, and the pursuit of happiness. This insistence upon governmental protection of the right to life of all innocent human beings must be a fundamental function of any legitimate government.

           The Creator referenced in the Declaration of Independence chose to have each new child begin life within his or her mother. The child in the womb has her own unique set of DNA. She is a separate human being - not simply part of her mother. On April 23 and 24, 1981 a United States Senate Judiciary subcommittee held hearings on the question: When does life begin? The internationally known group of geneticists and biologists had the same conclusion - that life begins at conception. But can any of us, with what we know about the child's unique set of DNA beginning at conception, even pretend now that this is not true? The possibility of twinning does not diminish the recognition that upon conception there is new human life in the mother's body - life that is not her own.

           Just because the child is held and nourished within her mother does not give her mother the right to kill her. To the contrary, the mother with a child in the womb has a special responsibility to protect and care for her child. The generally recognized principle that parents must take care of their children once they are born applies as well to the children while they are growing and developing in the womb. Now I am not judging here the status of the soul of those who have had abortions or help to abort babies. I leave that (and the judging of my own soul) to God. But what we must judge as a people is what actions are so intrinsically evil, and do such harm to others who are innocent of wrongdoing (such as killing them), that the State, any decent State, must prohibit those actions from being inflicted on their victims. Obviously,the baby in the womb is the victim of abortion.

           I do not want to offend the women who havebeen bamboozled by our abortion culture, but is not abortion the ultimate hatecrime - the turning of legendary motherly love to hatred and killing of one's own child?

           The United States of America fails in its fundamental mission if it refuses to secure for the weakest and most vulnerable innocent people amongst us the rights to life, liberty, and the pursuit of happiness. The ABA fails in its mission if it fails to stand up for the rights of the powerless. If we deny the right to life for children in the womb because they are developmentally immature (and therefore, in the eyesof some, not "persons"), then we not only tragically deny these children the irrights we open the door to infanticide and the killing of other weak and infirm people. Here is a crisis in the United States over the loss of our moral roots. The ABA, which claims to be the voice of the legal profession,and to be an advocate of the protection of fundamental rights, should become astrong voice for all the weak and vulnerable innocents who so desperately need champions now.

           We would do well also to realize that theConstitution of the United States - and the Supreme Court's interpretation of it - is not the fundamental source of human rights within the United States. Our rights to life, liberty,and the pursuit of happiness do not arise out of our own "social contract" -the Constitution. To the contrary, asthe Declaration asserts, these rights are endowed upon us by our Creator. The rights of the child are a burden to the mother, but fundamental rights of others are a burden we must bear.


           At the 2001 Annual Meeting, the Chair of the Standing Committee on Constitution and Bylaws reported that the Committee "voted to recommend to the House that the proposal be considered out of order, in that it is inconsistent with the first purpose clause of Association's Constitution, which is ... 'To uphold and defend the Constitution of the UnitedStates and maintain representative government.'" The same claim was made in 2002. [5]

           The inconsistency contention has no merit. First the obvious: Nowhere does the actual language of the United States Constitution specify that the States may not defend the right to life of each and every innocent human being within their respective jurisdictions (including all those conceived but not yet born). So the claim that the defense of such life is inconsistent with defending and upholding the Constitution, is on its face highly suspect.

           If the inconsistency argument does not reston the actual language of the Constitution, let us go beyond the actual language of the Constitution and try to articulate the argument. The inconsistency argument could be so stated:

1. Roe v. Wade and Planned Parenthood v. Casey prohibit each State from defending the right to life of each and all innocent human beings conceived but not yet born, within the State's jurisdiction.

2. The SupremeCourt has determined that the Constitution's penumbra of privacy rights attendant to the pregnant mothers is what prohibits the States from defending the right to life of each and all those conceived but not yet born.

3. Therefore, itis the Constitution itself that prohibits the defense by the States of theright to life of all those conceived but not yet born.

4. Therefore,advocating the defense of the right to life of all those conceived but not yet born is inconsistent with upholding and defending the Constitution since the Constitution prohibits that defense.

        But it cannot be reasonably be said (1) that the holdings of Roe v. Wade as modified by Planned Parenthood v. Casey are the Constitution itself - and (2) that if one opposes Roeand Planned Parenthood, one is opposing the Constitution itself - and failing to uphold and defend it. The lack of identity of particular Supreme Court interpretations of the Constitution with the Constitution itself should be rather self-evident. No doubt you (the members of the House) are aware that legal conclusions underlying many Supreme Court decisions -including those interpreting the Constitution - have been rejected by later Supreme Court decisions although the relevant language of the Constitution has not changed in the interim. Thus, generally, contending that opposition to a particular Supreme Court interpretation of the Constitution constitutes opposition to the Constitution itself is stretching language and logic to the breaking point.

        Now, maybe a persuasive argument could be made that although some Supreme Court interpretations of the Constitution are subject to later change, some are so indisputably correct that in some real sense the interpretation could be said to be the Constitution itself. If the Supreme Court rationale for Roe v. Wade and Planned Parenthood v. Casey were so rock-solid and accepted by American society in general as the proper articulation of a virtually undisputed fundamental individual right grounded in the Constitution, one could argue that in effect these Supreme Court decisions are equivalent to the Constitution; but that is certainly not the case with Roe v. Wade and Planned Parenthood v. Casey. (And note that Planned Parenthood itself modified fundamental holdings of Roe.)

        The truth is quite to the contrary of the position of the Standing Committee on Constitution and Bylaws. The reality is that the rationale underlying these two Supreme Court decisions deserves no support from an organization which is pledged to uphold and defend the Constitution of United States. This is because the underlying rationale fo rthe decisions is bogus, even if one accepts the concept of the privacy rights penumbra. The Supreme Court's opinion in Roe v. Wade takes the position that neither Texas nor any other State may legislatively determine that human life begins at conception, since (theCourt asserted) there is uncertainty over the legitimacy of that claim - that human life does begin at conception. But this claimed uncertainty is a figment of the Supreme Court's imagination. There is no real uncertainty over the point at which each human life begins - we all have our own unique set of 46 chromosomes. This set is forged at the moment of conception. The new child (or, perhaps, eventually, the new twins) is new human life - residing within the child's mother, but not simply a part of her.

        Based on the faulty contention that the childin the womb cannot properly be legislatively determined to be a human being, the Supreme Court denigrated the child to the status "potential life, "stripping the child of her rightful status under the law as a human being. The Court then set up a false dichotomy of competing rights: the mother's "right to privacy" right to kill the non-human blob in her womb verses the State's interest in protecting the "potential life" in the womb and the health of the mother. (Referring to a living being with its own DNA as "potential life" is doublespeak at its best.) The hand dealt the child in the womb by the Supreme Court was dealt from a stacked deck- based upon the lie that the child in the womb is not really a child. As a "potential life" rather than a real, live human being, the child's real rights get pushed aside by the Supreme Court. The rationale of Roe v. Wade is not indisputable (and thus, one might argue, the Constitutionitself); rather, the rationale of Roe v. Wade is fatuous.

        Finally, the proposal (and all already articulated purposes in ABA Constitution Section 1.2) presupposes the ABA defense of the right to life of the innocents will be undertaken by lawful means. Suppose the ABA as an organization were to advocate a change through lawful means in the United States Constitution (or in a Supreme Court interpretation of the Constitution). Would this mean the ABA had abandoned its purpose to uphold and defend the Constitution? Of course not. We have an obligation to address constitutional issues that need addressing. We honor the Constitution by doing so. So, even if I were advocating change in the language of the Constitution by lawful means, my proposal would not conflict with the ABA purpose to uphold and defend the Constitution.

    It has further been suggested that what I advocate is a policy position for the ABA, not a purpose of the ABA, and therefore my proposal should be rejected on the technical ground that it does not belong in Section 1.2 of the ABA Constitution. I disagree with this contention also. After all, what is a purpose? A purpose is simply a fundamental policy. The innocent human beings in the wombs of their mothers (who have become mortal enemies of their own children) cry out for our country to renew its commitment to the basic principles of the Declaration of Independence -- that every innocent human being has the right to life, liberty, and the pursuit of happiness. And it is not just the innocents in the womb who cry out for champions. We are sliding down the slippery slope of disregard for the sanctity of human life for many outside the womb as well -- the old, the infirm, and the disabled. If we do not wake up and start standing up for what is right, soon many of these innocents will have to be justifying why their lives should be spared -- why we should be spending money and effort on their inconvenient and bothersome lives.

    At the House of Delegates in August 2001, the speaker who advocated postponing the proposal indefinitely said that the proposal "changes fundamentally the purpose of the American Bar Association and the Constitution and Bylaws, and has ramifications over a wide array of policy that the Association has adopted and implemented." I have reviewed the ABA Policy and Procedures Handbook and note here policy positions taken by the ABA that are, or may be regarded as inconsistent with the proposal being made hereby.

    The ABA Policy and Procedures Handbook lists hundreds of standing policies adopted by the ABA over the years, although apparently some sort of action wastaken at the 2001 meeting to "archive" some policies over ten years old. I have not investigated what policies havebeen archived, if any. Way back in1978, the ABA adopted a policy, still in the Handbook, supporting federal and state legislation to "finance abortion services for indigent women." In 1991, the ABA adopted apolicy supporting legislation to promote "full counseling and referrals on all medical options" in federally funded family planning clinics. In 1992, the ABA adopted a policy opposing federal legislation restricting abortions prior to viability and thereafter if the abortion is "necessary to protect the life or health of the woman ...."And in 1994, the ABA adopted a policy recommending that the United States, at the Fourth World Conference on Women in Beijing, China, in 1995, "actively support the inclusion in thePlatform for Action of [e]ffective measures to accelerate the removal of the remaining obstacles to the realization of women's basic rights." At the annual meeting in 2001 the ABA adopted a policy provision opposing the Mexico City Policy, which prohibits overseas funding by the United States of nongovernmental organizations that provide abortion-related health or medical services.

    If the proposal is adopted, inconsistent policies would be revoked by implication. Legal protection for all innocent human life is essential to a properly ordered society. It is fundamental policy that belongs in purposes of the American Bar Association if the Association is to stand up for fundamental human rights.


[1] This will be my third presentation of this proposal in person to the House of Delegates. It is my fourth report because I made the proposal in 2000 as well, but despite repeated contacts with the ABA prior to the House annual meeting, including a telephonic conference with the Standing Committee on Constitution and Bylaws, I was never informed that I should attend the meeting myself in order for the proposal to be considered by the House.

[2] And other lives.

[3] In 2001 by a non-committee member of the House, and in 2002 by the Committee representative himself.

[4] Strangely, although the ABA has an annual budget of about $180 million, the House of Delegates is not willing to commit the $20,000 or thereabouts it would take in order to bring transparency and accountability to the actions of the House by having every member's vote electronically recorded when it deals with the most important matters, such as amendments to the ABA constitution or bylaws, and the adoption, amendment, or rescission of ABA policy positions. Last year I presented to the ABA House of Delegates a proposal to bring that transparency and accountability to the House and to have the results posted for a year on the ABA website. It failed miserably, with only about ten of the 500 or so in attendance voting in favor (based upon my guestimate at the time of the voice vote). Actually, I think it is important enough to bring it back to the House, but for now at least I leave that to others. I will concentrate on this proposal, which is, by far, the more important of the two proposals.

[5] In a way, in part, I admire the Committee's position because it implicitly admits that the children being killed in their mother's wombs are in fact innocent human beings, not just blobs of tissue that are part of the mother's body. That realization is step number one.

Edward Jacobs is a graduate of the University of Chicago Law School and has been a member of the American Bar Association for 27 years. Mr. Jacobs and his wife have a son and daughter and attend Holy Cross Roman Catholic Church in Christiansted, St. Croix, in the Virgin Islands. You may reach Mr. Jacobs at edwardjacobs@yahoo.com

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