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A Legal Defense for the Unborn Child

Michael C. DeMoss

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Michael C. DeMoss
Attorney At Law
Galleria Offices on France
6950 France Avenue South, Suite #100
Edina, MN 55435-2024

Phn: (952) 920-0300 Fax: (952) 920-3883 E-Mail: Lawreview@MAC.com

Re: An Open Letter to the ABA and the Judiciary - Due Process and Equal Protection

Dear Members of the Judiciary and the American Bar Association:

        For over twenty years I have served as a Referee in the Hennepin County Conciliation Court and have come to appreciate the need to provide every claimant their "day in court", even when the claim appears to be of little consequence.

        The purpose of this letter is to bring to the attention of the Judiciary, and the American Bar Association, an area of the law that has gone unattended.

        Briefly stated, the court should be appointing an attorney to represent the unborn child whenever a hearing is held to grant a parental / judicial bypass for underage girls who are seeking to obtain abortions without parental consent.

        Under current law, an unborn child is entitled to many rights, benefits and protections as a result of State and Federal laws; and, because of this, there appears to be a conflict of interest for a State Court to grant an abortion (which defeats these rights and benefits) without legal representation being provided to the prospective recipient (the unborn child).

        PROBATE: Specifically, an unborn child may have certain rights, through inheritance, that are being terminated by the abortion procedure and this would require independent legal representation for the unborn child.

        CRIMINAL LAW: Some underage girls are victims of rape and are coerced by the male perpetrator to seek an abortion. In the case of a rape, statutory or otherwise, an abortion effectively destroys evidence.

        Constitutional, State and Federal laws, as well as case law, support the need for due process and equal protection under the law; and I will briefly summarize why (at the very least) the appointment of counsel is necessary in order to provide justice for all. (See "Post note" at the end of this letter for Minnesota laws protecting the unborn.)

        Constitutionally speaking, as illustrated in the following cases, the right to receive Due Process and Equal Protection under the law is uniformly acknowledged in cases that affect rights which are less important than the right to life. Life, as a fundamental inalienable right, guaranteed under the Constitution, deserves at least the same treatment and protection.

        Goldberg v. Kelly, 397 U.S. 254 (1970) in which the Supreme Court held that benefits to a welfare recipient may not be terminated without a prior hearing. (Due Process)

        Plyler v. Doe, 457 U.S. 202 (1982) in which the Supreme Court decided that the Fourteenth Amendment guarantees equal protection of the law to aliens illegally in the United States.

        If, as in these cases, an illegal alien has a right to equal protection of the law even though he is not a citizen and therefore technically not a "person", and if a welfare recipient's benefits cannot be terminated without a due process hearing; then, in order to protect a "Fundamental Right" (Life), we cannot legally deny equal protection of the law and due process to the unborn individual who has rights recognized in so many other areas of the law.

        There is no logical justification for the exception that abortion has under the law.

        MEDICAL CARE: Judicial notice can be taken with respect to the fact that the unborn child is a person in the field of medicine and science. Every Medical Doctor acknowledges that a physician has two patients when treating a pregnant woman: the mother and the baby; and an unborn child has a right to bring an action for malpractice against a doctor who injures or kills the child during gestation. Every ultra-sound technician can describe the head, hands, feet and vital human organs of a baby growing in the womb.

        It follows that every Judge has two parties in the court during a Judicial Bypass hearing, the mother and the unborn child.

        It is of some assistance in the examination of this issue to recall that the Declaration of Independence states: "All men are created equal". The signers of this Founding Document did not say: "All men are born equal".

        It becomes quite apparent that we are dealing with a classic "Fundamental Right", a "Suspect Class", and a requirement for "Strict Scrutiny" in our Constitutional analysis.

        Every generation of lawyers and judges is called upon to challenge public opinion in order to reveal the truth, reverse an injustice, and protect the innocent.

        In the nineteenth century, slaves were considered to be mere property, without any rights. Through the courage of lawyers and judges of that era, an injustice was reversed.

        The twenty-first century has an equal challenge in overcoming public opinion which, through Roe v. Wade, has denied the unborn child the fundamental right to due process and equal protection under the law.

        Reversing this injustice is the challenge that faces the lawyers and judges, and the American Bar Association, in the new millennium.

        Please take this under advisement and respond to me in writing explaining the positions that the Judiciary and the American Bar Association hold with respect to these issues.


Michael C. DeMoss
Attorney at Law

Post note: Every state recognizes the rights of the unborn as a person entitled to protection or benefits in the areas of Criminal Law, Probate and Medical Care; as does Minnesota in at least the following instances:

        M.S.A. 501B.19 Representation of persons who are unborn, unascertained, unknown, or minors or incapacitated persons.

        M.S.A. 609.266 through 609.268 Criminal Law
            Injury or death of an unborn child in the commission of crime:
            Crimes against unborn children
            Murder of an unborn child
            Manslaughter of an unborn child
            Assault of an unborn child

        M.S.A. 256B.042 Subd.5 Public welfare / Human services
            Aid for pregnant women
            M.S.A. 256B.04 Subd.17 Prenatal Outreach
            M.S.A. 256B.042 Subd.6 Needy unborn child
            M.S.A.145.422 Public Health
            Experimentation or sale of a living human conceptus
            (a gross misdemeanor)

        M.S.A. 145.421 Subd.3 Human Conceptus, definition of "Living" means the presence of evidence of life,
            such as movement, heart or respiratory activity;
            The presence of electroencephalographic or electrocardiographic activity.

        M.S.A. 525.171; 524.2-101 Intestate Succession Subd.6
            Effect of posthumous birth on event of "death without issue" (right to inherit exists).
            A posthumous child shall be considered as Living at the death of its parent.

        M.S.A. 525.20 After-born child, omitted child and after-born heirs

        M.S.A. 542.2-108 Probate Proceedings-Wills-Uniform Probate Code.
            After-born heirs inherit as if they had been born in the lifetime of the decedent.

        M.S.A. 500.14 Estates in Real Property
            Subd.1 Failure of heirs or issue (rights of descendants in gestation)
            Subd.5 Posthumous children as remainder persons.

        M.S.A. 290.22 Income and Excise Taxes/Estates and Trusts, imposition of tax on income accumulated in trust for the benefit of unborn persons.

        M.S.A. 325C.04 Elective State Officers Retirement
            Subd.2a Dependent children's survivor benefits.
            A posthumous child qualifies as a dependent child for benefits.

Michael C. DeMoss is an attorney practicing in Minneapolis, Minnesota. Mr. DeMoss has been an advocate for the unborn for decades.

Posted: 04-May-06

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