Letter to the Alabama Legislature & Alabama Attorney General Steve Marshall
Re: HB314 and companion bill SB211 to criminalize abortion
April 9, 2019
by Elizabeth Potter Graham, JD
I am a resident of Alabama, currently Vestavia Hills, and I have voted since 1972.
Please read this letter regarding the proposed House Bill 314 and companion Senate Bill 211.
Legislative committee procedures do not allow sufficient time to cover the law and facts pertaining to the bill. I urge legislators to read Roe v. Wade, beginning with §V (skip the boring procedural issues). Legislators should understand why SCOTUS ruled as they did, and why these bills are unconstitutional and medically unsound.
Since 2012, I have attended legislative sessions and committee hearings when bills restricting abortion rights have been debated. I have studied the case law, as well as embryonic and fetal development. I have listened to hundreds of opponents of legal abortion. Because I understand the law and reproductive biology, opponents, including male Republican former senators, have said vile and offensive things to me.
I believe that individual pregnant women are the proper people to decide whether they will abort their pregnancies. I support their decisions either way. I strongly believe that government has no role to play in those decisions. I respect and follow the Supreme Court’s rulings in Roe v. Wade, Planned Parenthood of SE Pennsylvania v Casey, and Bellotti v. Baird.
I haven’t been affiliated with a political party since I was a Teen Age Republican for a few months in 1968, when George C. Wallace headed the Democratic Party in Alabama.
I am not paid or compensated in any way by any person or political group for my efforts to persuade the Alabama Legislature to follow the law.
My BA is from Birmingham-Southern College. I worked four years as a social worker in the Aid to Dependent Children and Child Support units of the Madison County Dept. of Pensions & Security, now Dept. of Human Resources.
I graduated in the top half of my class from the University of Alabama School of Law, and I was admitted to the Alabama bar the following September. I prosecuted paternity and child support cases in the Montgomery County DA’s office. As staff and managing attorney for the Legal Aid Society of Birmingham, Inc., I worked in juvenile court for eight years.
My clients included pregnant minors who sought judicial bypasses to parental consent for abortion. I was the attorney for the petitioner in Ex Parte Anonymous, 595 So.2d 499 (1992), in which the Supreme Court of Alabama overturned the Juvenile Court’s refusal to grant a judicial bypass to a seventeen year old pregnant girl.
Later, I practiced law as a solo practitioner for eight years. I specialized in child support cases for low income mothers, as they have been my concern since my time as a social worker.
When I stopped practicing law, I was in good standing with the Alabama State Bar. Only one bar complaint had been filed against me. It was by a father who lost custody of three children for whom I acted as guardian-ad-litem. He had neglected his children. After I wrote a letter to the Bar in response to his complaint, the case was closed.
I married in 1983, and we have two children that we know of. This is an attempt at humor: the recent amendment to the Alabama Constitution defines fertilized eggs which aren’t implanted in the uterus as unborn children. By this definition, I may have had up to sixty more children that weren’t detected and were expelled during menstruation.
I should not have to discuss my obstetrical history with government officials or the public. I consider it a gross invasion of privacy. However, opponents of legal abortion frequently assume that I am childless or don’t like children. My mother raised me to be a wife and mother. I have had several health crises while trying to produce children. Painful memories came flooding back in 2012, when the first Targeted Regulation of Abortion Providers bill came before the Legislature.
I had difficulty becoming pregnant because I ovulated later in my cycle than is ideal. When I finally became pregnant, the doctor advised that the pregnancy was doomed. I had two surgeries, a dilation & curettage and a laparotomy, both under general anesthesia. The ultimate diagnosis was ectopic and molar pregnancy. I lost a Fallopian tube. The correct description of my treatment is therapeutic abortion. I would have died had the pregnancy not been terminated.
My children were born when I was 36 and 43. Between pregnancies, I unsuccessfully tried fertility pills and injections, which resulted in one miscarriage (technically a spontaneous abortion) and a visit to the ER for a painful ovary. I breastfed my children, all while practicing law and maintaining a household.
TABLE OF CONTENTS
I. HISTORY OF ABORTION PRACTICE AND RELEVANT LAW
A. THE PRACTICE OF ABORTION
B. STATES’ CRIMINALIZATION OF ABORTION
C. FORCED STERILIZATION
D. RELIGIOUS LEADERS’ OPPOSITION TO CRIMINALIZATION OF ABORTION
E. PERSONHOOD OF WOMEN, EMBRYOS, AND FETUSES
F. ROE V. WADE
G. WHEN LIFE BEGINS
H. THE CARDER CASE & PATIENTS’ RIGHTS
I. SCOTUS UPHOLDS RIGHT TO ABORTION IN PLANNED PARENTHOOD V. CASEY.
J. THE BURTON CASE & PATIENTS’ RIGHTS
K. OTHER STATES’ FETAL HEARTBEAT BILLS HELD UNCONSTITUTIONAL
L. RECENT ALABAMA STATUTES LIMITING ABORTION HELD UNCONSTITUTIONAL
1. The Admitting Privileges Law of 2013
2. The Parental Consent and Judicial Bypass Statute of 2014
3. The School Proximity Law of 2016
4. The Fetal Demise Law of 2016
II. ETHICAL CONSIDERATIONS REGARDING ABORTION
III. RELIGIOUS ATTITUDES ON ABORTION
A. PRACTICE VS. POLICY
B. JUDAISM
C. MAINLINE PROTESTANT CHRISTIANITY
D. HISTORICALLY BLACK CHRISTIAN CHURCHES
E. QUAKERS (SOCIETY OF FRIENDS)
F. LATTER-DAY SAINTS (MORMONS)
G. ASSEMBLY OF GOD
H. ROMAN CATHOLICISM
I. EVANGELICAL CHRISTIANITY
1. History
2. Presbyterian Church of America and Briarwood Presbyterian Church.
IV. THE SCIENCE OF EMBRYOLOGY AND FETAL DEVELOPMENT
V. THE BILL UNDER CONSIDERATION
A. THE RULE OF LAW
B. THE DECLARATION OF INDEPENDENCE
C. THE ACCUSATION OF GENOCIDE
D. INDIVIDUAL RIGHTS VS GOVERNMENT POWER OVER INDIVIDUALS
E. FAILURE TO USE PROPER SCIENTIFIC NOMENCLATURE
F. FAILURE TO PROTECT VICTIMS OF RAPE OR INCEST
G. WOMEN OF MEANS ARE EXCEPTED FROM THE BILL’S DRACONIAN PROVISIONS
H. INTERFERENCE WITH DOCTORS’ DUTIES TO THEIR PATIENTS
I. THE BILL IS BASED ON FALSEHOODS ABOUT EMBRYONIC AND FETAL DEVELOPMENT AND PREGNANCY.
J. VIOLATION OF RELIGIOUS FREEDOM
K. POLITICAL MOTIVATIONS FOR BILL
L. COSTS TO ALABAMA TAXPAYERS
I. HISTORY OF ABORTION PRACTICE AND RELEVANT LAW
A. THE PRACTICE OF ABORTION
Abortion is not a recent phenomena. In ancient times, midwives and female herbalists used silphium, pennyroyal, artemisia, myrrh, rue, Dong quai and peony for abortion. Abortion was practiced in the English colonies which are now part of the USA. In the early 1800s, abortion drugs and services were advertised in US newspapers.
The historical practice of abortion and philosophical beliefs about abortion are discussed in §VI of the majority opinion in Roe v Wade. Under English common law (the basis of our legal system), abortion after quickening was occasionally punished as a misdemeanor. When the US Constitution was adopted, women had a broader right to terminate their pregnancies than they did when Roe v. Wade was argued before the Supreme Court.
B. STATES’ CRIMINALIZATION OF ABORTION
States enacted criminal statutes outlawing abortion during the mid to late 1800s. In 1852, an all white male Alabama Legislature criminalized abortion. At that time, women were excluded from voting, holding elective office and practicing law, so they had no way to assert their rights. That statute can be found at §13A-13–7 and states:
Any person who willfully administers to any pregnant woman any drug or substance or uses or employs any instrument or other means to induce an abortion, miscarriage or premature delivery or aids, abets or prescribes for the same, unless the same is necessary to preserve her life or health and done for that purpose, shall on conviction be fined not less than $100.00 nor more than $1,000.00 and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than 12 months.
Note that Alabama’s law allowed for abortions if a woman’s health was threatened. Prior to Roe v. Wade, Alabama women who could obtain three letters from psychiatrists attesting to their poor mental health could have abortions performed in hospitals. The proposed bill only requires one psychiatrist attest to the pregnant woman’s mental health. Any woman of means should be able to surmount that hurdle. Poor and uninsured women will be denied abortions.
Surgical abortion procedures were hazardous to women prior to the development of antiseptic techniques by Lister and Pasteur. Germ theory of disease was not yet accepted. Antibiotics were not developed until the 1940s. The dilation and curettage procedure was not yet safe. Abortions performed with herbs could poison a woman. This has all changed. It is now safer to undergo an abortion than to continue a pregnancy and give birth. Maternal mortality is increasing in the United States.
Other reasons have been suggested for the criminalization of abortion. The AMA wanted to eliminate competition from midwives and herbalists. Protestant men were concerned about the decreasing birth rate of Protestant women and the immigration of Roman Catholics to the US. Roman Catholic families had more children than Protestants, and Protestant men feared that they would be outnumbered at the polls. They wanted Protestant women to produce more children.
The enactment of these laws did not end the practice of abortion. Hospitals in major cities had wards for women who had been infected or injured through illegal and self-induced abortions. Laws prohibiting abortion made abortion dangerous to women.
What became of unwanted infants? In Baltimore, many were placed in institutions where most of them died, according to a report by George Walker called The Traffic in Babies.
C. FORCED STERILIZATION
A Virginia law allowing for forced sterilization was approved by the US Supreme Court in Buck v. Bell (1927). This case has never been overruled. Carrie Buck was in foster care when she gave birth to a child out of wedlock as a result of being raped by a relative of the foster parents; this was not mentioned in the court proceedings. Carrie Buck’s court appointed attorney called no witnesses on her behalf. Although the Supreme Court had previous ruled that people have a right to privacy, that issue was not raised in this case. Virginia repealed its forced sterilization law in 1974.
D. RELIGIOUS LEADERS’ OPPOSITION TO CRIMINALIZATION OF ABORTION
In New York in 1967, the Clergy Consultation Service was organized to help women seeking abortions. Over a thousand interfaith members (nurses, rabbis, ministers and priests) were concerned about the high rates of infection, injury and death among women who had illegal abortions. They formed a secret network and referred women in their churches and synagogues to trusted medical professionals for safe but illegal abortions. That organization is now known as the Religious Coalition for Reproductive Choice. Read about the Clergy Consultation service here and here.
Their work spread to other states. On a Sunday morning in 1971, a Florida Presbyterian minister announced his opposition to the state’s immoral abortion laws, and revealed to the congregation that he and a fellow minister had been helping women in Tallahassee obtain abortions. According to these clergymen, “freedom of religion had to include freedom from those religious groups that sought to place restrictions on abortions.” Florida’s Supreme Court struck down the state’s abortion law as unconstitutionally vague, indefinite, and uncertain. The Clergy Consultation Service spread to Illinois, Massachusetts, Michigan, Pennsylvania, New York and Ohio.
E. PERSONHOOD OF WOMEN, EMBRYOS, AND FETUSES
The term personhood is a legal term of art. We must therefore define personhood as SCOTUS defined it in Roe v Wade:
The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators; … the Apportionment Clause; … the Migration and Importation provision; … the Emolument Clause; … in the Electors provisions;… the provision outlining qualifications for the office of President; …the Extradition provisions; … the superseded Fugitive Slave Clause; …the Fifth, Twelfth, and Twenty-second Amendments; …as well as ….the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application….the word “person,” as used in the Fourteenth Amendment, does not include the unborn.”
In 1971, Supreme Court ruled in Reed v Reed that women were persons protected by the 14th Amendment. A unanimous Court held:
…[W]e have concluded that the arbitrary preference established in favor of males by § 15–314 of the Idaho Code cannot stand in the face of the Fourteenth Amendment’s command that no State deny the equal protection of the laws to any person within its jurisdiction….this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways…. The Equal Protection Clause … [denies] to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike….The crucial question, however, is whether § 15–314 advances that objective in a manner consistent with the command of the Equal Protection Clause. We hold that it does not. To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex. [cited cases omitted]
The State of Alabama has no constitutional provision guaranteeing the personhood or equality of women. Women have a lower legal status than a fertilized egg, and corpses have more rights over their own bodies.
F. ROE V. WADE
On January 22, 1973, the Supreme Court held in Roe v. Wade that government prohibitions of abortion in early stages of pregnancy violated pregnant women’s liberty and privacy rights. Personal rights that can be deemed fundamental or implicit in the concept of ordered liberty are included in the Constitution’s guarantee of personal privacy. Those fundamental and personal rights include marriage, use of contraception, procreation, family relationships, and the right to rear and educate one’s children. Therefore, under the 14th, and perhaps the 9th Amendments, government is powerless to criminalize abortion in certain stages of pregnancy. The Court allowed states to safeguard health, maintain medical standards, and protect potential life late in pregnancy, so the right to abortion is not absolute, citing Buck v Bell, above, and Jacobson v Massachusetts on the issue of vaccination. See §VIII of the opinion in Roe v. Wade.
G. WHEN LIFE BEGINS
In §IX B of Roe v. Wade, Justice Blackmun wrote:
The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus…. it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.…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.
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community…the [Roman Catholic]Church … would recognize the existence of life from the moment of conception. The latter is now, of course, the official belief of the Catholic Church. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a “process” over time, rather than an event….
In areas other than criminal abortion, 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 except in narrowly defined situations and except when the rights are contingent upon live birth…States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense. [Emphasis added.]
In §X, Justice Blackmun continued:
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman … and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling. [Emphasis added.]
H. THE CARDER CASE & PATIENTS’ RIGHTS
In June, 1987, a chilling case which pitted the health of a pregnant woman against the health of her fetus was heard by the District of Columbia Court of Appeals en banc after the death of Angela Carder. The case was discussed by Terry E. Thornton and Lynn Paltrow in Vol. 8, №5 (1991) issue of Healthspan.
Angela Carder had twice survived cancer. Three years into remission, she married and became pregnant. Her obstetrical care was provided by the George Washington University Medical Center High Risk Pregnancy Clinic. Ms. Carder told her obstetrician that she wanted to be watched for any recurrence of cancer, and she wanted to be sure her own health was not compromised by her pregnancy. During the 25th week of pregnancy, Ms. Carder was admitted to GWUMC and diagnosed with a lung tumor. Surgery was ruled out, leaving chemotherapy and radiation as her only hope of prolonging her life. The fetus was considered to be too premature to be born and have a good chance of survival until the 28th week of pregnancy. Ms. Carder was told that chemotherapy and radiation were risky to the fetus. Knowing this, Ms. Carder decided to proceed with cancer treatment. Her husband, parents, the obstetrical department, and its legal counsel supported her decision. That night, Ms. Carder’s condition worsened; she and the fetus were deprived of oxygen for hours.
Hospital administrators/liability risk managers disagreed with Ms. Carder’s treatment plan. They wanted a court to approve of her medical care, so they filed a petition and asked a federal district court to intervene. The petition asked for instructions as to “what it should do in terms of the fetus, whether to intervene and save its life.”
The court hastily appointed counsel for Ms. Carder and the fetus, and held a hearing at the hospital. The Carder family was given mere minutes to confer with counsel. Ms. Carder’s long term cancer specialist was not contacted. A neonatologist who was unfamiliar with the patient’s medical status testified that the fetus had at least a 60% chance of survival (other medical experts later concluded that the fetus was already brain dead and had virtually no chance of survival). The hearing focused on whether to “rescue” the fetus, rather than carrying out the expressed wishes of the patient and her family that no intervention be done on behalf of the fetus. The court balanced Ms. Carder’s life expectancy as a cancer patient against the interests of the fetus, and ordered a Cesarean section. Ms. Carder was conscious, lucid, and able to communicate. One of her doctors told her of the court’s ruling, and that the surgery might kill her. Ms. Carder repeatedly said “I don’t want it done.” The hospital administrators and court were not swayed. Ms. Carder’s obstetricians refused to perform the surgery, so a staff obstetrician was brought in.
An appeal was taken by telephone, and a three judge appellate panel upheld the decision. The Cesarean section was performed, and the fetus died within two hours. Two days later, Ms. Carder died, never having received the cancer treatment she requested.
Ms. Carder’s parents administered her estate and appealed the order to the entire Court of Appeals for the District of Columbia Circuit. The estate argued that it is settled law that a patient has a right to make his or her own health care decisions without interference from government. Medical ethics protect patient autonomy. In the hospital’s defense, its attorneys argued that a woman’s right to bodily integrity can be subverted when her fetus’ survival is conflicts with her expressed instructions. Supporters of the hospital asserted that a pregnant woman has an enhanced duty to assure the welfare of the fetus which can compel her to undergo a Cesarean surgery without her consent.
Ms. Carder’s estate prevailed. In its order in the case of In Re A.C., the District of Columbia Court of Appeals en banc rejected the argument that pregnant women may be compelled to submit to surgery against their wishes. “… a fetus cannot have rights in this respect superior to those of a person who has already been born,” the court ruled. A patient’s wishes may not be disregarded. Just as a child may not compel its parents to donate organs needed for the child’s survival, a fetus may not be vested with rights superior to its mother. Although Ms. Carder was on the brink of death, and her fetus was erroneously considered to be viable, the pregnant patient’s rights could not be overridden.
I. SCOTUS UPHOLDS RIGHT TO ABORTION IN PLANNED PARENTHOOD V. CASEY.
In 1992, SCOTUS reaffirmed a woman’s right to choose to have an abortion prior to fetal viability and when her life or health are endangered. Planned Parenthood of SE Pennsylvania v. Casey.
Roe’s three trimester framework was replaced by a fetal viability standard. A state may take measures to insure that a woman’s choice is informed, but must not be an undue burden on a woman’s right to abortion. A state may not impose unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion. A state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. A state may not require that a patient’s husband be notified. It can not be claimed that the father’s interest in the fetus’ welfare is equal to the mother’s protected liberty, since it is an inescapable biological fact that state regulation with respect to the fetus will have a far greater impact on the pregnant woman’s bodily integrity than it will on the husband.
SCOTUS affirmed Roe’s holding that, if the state regulates or proscribes abortion subsequent to fetal viability, the law must make provision to preserve the life or health of the mother.
J. THE BURTON CASE & PATIENTS’ RIGHTS
In a 2010 case, Burton v. State of Florida, Ms. Burton was twenty-five weeks pregnant when her membranes ruptured and she showed premature signs of labor. She went to a hospital where a doctor ordered bed rest and refused to let Ms. Burton leave the hospital to obtain a second opinion. The doctor contacted the State Attorney who filed a petition in the circuit court. Ms. Burton was not afforded legal counsel, and no second medical opinion was obtained. A hearing was held by telephone from Ms. Burton’s bedside in the hospital.
The circuit court ordered Ms. Burton to submit to any medical treatment deemed necessary by the hospital physician (who was not her regular OB/GYN) including detention in a hospital for enforcement of bed rest, administration of intravenous medication, and a possible Cesarean section Ms. Burton complied with the order. Three days later a Cesarean section was performed. Her fetus was deceased.
Ms. Burton obtained legal representation and an appeal was taken to the Florida Circuit Court of Appeals for the 2nd Circuit. The appellate court ruled in favor of Ms. Burton and against the State. The Florida Constitution, unlike Alabama’s, recognizes the right to privacy. The Florida Supreme Court has recognized that “a competent person has the constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one’s health.” [Emphasis added.]
K. OTHER STATES' FETAL HEARTBEAT BILLS HELD UNCONSTITUTIONAL
Fetal heartbeat bills were passed by the legislatures of North Dakota and Arkansas. Federal district courts in North Dakota and Arkansas held those laws unconstitutional. North Dakota and Arkansas appealed to the 8th Circuit Court of Appeals, and lost. Both states filed Petitions for Certiorari to the United States Supreme Court. The Supreme Court denied both Arkansas’ and North Dakota’s petitions. Justice Antonin Scalia was still living when Certiorari was denied.
L. RECENT ALABAMA STATUTES LIMITING ABORTION HELD UNCONSTITUTIONAL
After Republicans gained a majority in the Alabama Legislature, four laws restricting abortion rights were enacted. Each was litigated in the US District Court and struck down as unconstitutional.
1. The Admitting Privileges Law of 2013 was preliminarily enjoined and then held unconstitutional in Planned Parenthood SE v. Strange, 172 F.Supp.3d 1275 (2016). The law required doctors who perform abortions in clinics to have admitting privileges in a nearby hospital. The federal court ordered the state to pay $1,700,000.00 for the plaintiff’s attorneys fees and expenses. This and similar laws are called TRAP laws, for Targeted Regulation of Abortion Providers. SCOTUS struck down Texas’ version of a similar law in Whole Woman’s Health v. Hellerstedt in 2016.
2. The Parental Consent and Judicial Bypass Statute of 2014 was held unconstitutional. An earlier law providing that juveniles must have one parent’s permission or a court order to obtain a legal abortion was amended in 2014. The new law was held unconstitutional by a district court magistrate in Reproductive Health Services v. Marshall in 2017. The case is on appeal by the State to the 11th Circuit (docket number 17–13561). Oral argument held on April 10, 2018. No decision has been reached. This law was ridiculed on The Daily Show.
3. The School Proximity Law of 2016 was held unconstitutional. In 2016, the Legislature passed this law at the behest of Rev. James Henderson, who asserted that women’s clinics should not be located near schools because they would disturb students. In 2016, the law was held unconstitutional after a trial in the District Court (West Alabama Women’s Center v. Miller). The Attorney General opted not to defend the statute before the 11th Circuit Court of Appeals.
Rev. Henderson and his wife Carol frequently engage in what is euphemistically called “sidewalk counseling” outside Huntsville’s women’s clinic and a doctor’s office. The City of Huntsville added a restriction to the Henderson’s permit to use the public sidewalk outside the clinic which prohibits them from amplifying sound to the point they can be heard inside adjacent buildings. The Hendersons filed suit against the City for infringement of the 1st Amendment right to harass clinic patients, staff, and the people inside adjacent buildings, including a school. In the author’s opinion, the Hendersons are disingenuous.
4. The Fetal Demise Law of 2016 was held unconstitutional. The statute criminalized the most common method of second trimester abortion, dilation and evacuation, unless the physician induces fetal demise before performing the procedure. After a trial, the law was held to be unconstitutional in West Alabama Women’s Center v. Miller. The ruling was affirmed by the 11th Circuit Court of Appeals. The State of Alabama has petitioned the US Supreme Court for certiorari.
The 11th Circuit Court of Appeals order affirming Judge Thompson’s ruling that the Fetal Demise Law was unconstitutional may be read here: https://www.scribd.com/document/386829901/Abortion-Ruling#from_embed
Opponents of legal abortion have engaged in criminal acts in Alabama, including murder and bombing, as detailed by Judge Myron Thompson in Planned Parenthood SE v. Strange. Currently, opponents harass patients and staff outside several Alabama clinics.
II. ETHICAL CONSIDERATIONS ABOUT ABORTION
John G. Messerly, PhD in philosophy, wrote for the Institute for Ethics and Emerging Technologies that
…professional ethicists, who are typically non-religious philosophers, find nothing morally objectionable about abortion because they aren’t religious….We live in a morally pluralistic society where, informed by the ethos of the Enlightenment, we should reject attempts to impose theocracy….the received view among ethicists is that the pro-life arguments fail, primarily because the fetus satisfies few if any of the necessary and sufficient conditions for personhood. The impartial view, backed by contemporary biology and philosophical argumentation, is that a zygote is a potential person. That doesn’t mean it has no moral significance, but it does mean that it has less significance than an actual person. An acorn may become an oak tree, but an oak tree it is not. You may believe that your God puts souls into newly fertilized eggs, thereby granting them full personhood, but that is a religious belief not grounded in science or philosophical ethics.
As for American politics and abortion, no doubt much of the anti-abortion rhetoric in American society comes from a punitive, puritanical desire to punish people for having sex. Moreover, many are hypocritical on the issue, simultaneously opposing abortion as well as the only proven ways of reducing it — good sex education and readily available birth control. As for many (if not most) politicians, their public opposition is hypocritical and self-interested. Generally they don’t care about the issue — they care about the power and wealth derived from politics — but they feign concern by throwing red meat to their constituencies. They use the issue as a ploy to garner support from the unsuspecting. These politicians may be pro-birth, but they aren’t generally pro-life, as evidenced by their opposition to policies that would support the things that children need most after birth like education, health-care, and economic opportunities. But what politicians and many ordinary people clearly don’t care about is whether their fanatical anti- abortion position is based in rational argumentation.
III. RELIGIOUS VIEWS ON ABORTION
A. PRACTICE VS. POLICY: The official views on the legality or wisdom of abortions may not reflect the private opinions of members. A 2014 Pew poll found that U.S. Catholics were divided on the issue of abortion. A slight majority, 48% to 47%, supported legal abortion. Sixty percent of mainline Protestant Christians support keeping abortion legal.
Many abortion patients reported a religious affiliation — 24% were Catholic, 17% were main-line Protestant, 13% were evangelical Protestant and 8% identified with some other religion. Thirty-eight percent of patients had no religious affiliation.
A 2017 Pew Research poll studied the relationship between religious affiliations and beliefs in the USA, and approval of legal abortion in all or most cases:
90% Unitarian Universalist
87% of atheist
87% of agnostic
83% of Jewish
82% of Buddhist
79% of Episcopal Church
72% of United Church of Christ
67% of “nothing in particular”
65% of Presbyterian Church USA
65% of Evangelical Lutheran Church in America
64% African Methodist Episcopal
58% United Methodist
57% All US adults
57% National Baptist Convention
56% Anglican Church
55% Muslim
54% Presbyterian Church in America
53% Orthodox Christian
48% Roman Catholic
47% American Baptist
46% Lutheran Church — Missouri Synod
42% Seventh Day Adventist
41% Church of God in Christ
36% Church of Christ
30% Southern Baptist Convention
27% Mormon
27% Church of the Nazarene
26% Assembly of God
20% Church of God (Cleveland, TN)
18% Jehovah’s Witnesses
Lifeway Research published an online article on November 23, 2015 entitled Women Distrust Church on Abortion. Four in ten women who have had abortions were churchgoers at the time. Only 7% discussed their decision with someone at their church. Two-thirds say church members judge single women who are pregnant. Fifty-four percent think churches oversimplify decisions about pregnancy options. Fewer than half believe churches are prepared to help women decide what to do about unwanted pregnancies. Only three in ten think churches give accurate advice about pregnancy options.
B. JUDAISM:
Jewish law allows for abortion. The embryo or fetus is regarded as part of the mother. If the mother’s life is endangered, the Talmud teaches that the fetus may be sacrificed. A fetus is not considered to be a person, or to have a soul, until the fetus’ head emerges from the birth canal. Modern and contemporary Jewish legal decisions have permitted abortion when a fetus may suffer gravely if carried to term, or when a mother’s physical or mental health is in danger. Reform and Conservative Judaism favor a woman’s legal right to have an abortion with few or no exceptions. Orthodox Jews do not view abortion as a woman’s right, but believe it is sometimes necessary, and oppose legislation intended to make abortion illegal in cases permitted by Jewish law. Each situation is unique and deserving of thoughtfulness. Legislation which forces clinics to close put women’s life at risk, so is opposed.
Jewish people have historically been strong supporters of separation of church and state, and are wary of legal maneuvers that derive from Christian religious convictions.
Some Christians quote verses from the Hebrew Bible (Psalm 139:13, Jeremiah 1:5, Isaiah 44:24) to justify their opposition to legal abortion. Jewish authorities don’t consider these texts to be relevant to the issue of abortion.
C. MAINLINE PROTESTANT CHRISTIANITY:
Mainline Christian denominations including the United Methodist Church, the Episcopal Church, the Evangelical Lutheran Church in America, the Presbyterian Church (USA), Unitarian Universalists, First Christian (Disciples of Christ) and the United Church of Christ regard abortion as a serious decision to be undertaken reluctantly. They oppose criminalization of abortion under most circumstances. The Episcopal Church restated its opposition to bills such as HB 314 on May 17, 2019.
The American Baptist Church recognizes that it has diverse opinions in its membership. The Church officially denounces irresponsible sexual behavior and violence which leads to abortions, encourages men and women facing unwanted pregnancies to pray and seek spiritual counsel, and condemns violence and harassment at abortion clinics. Individual members are free to advocate for public policies which reflect their individual views.
D. HISTORICALLY BLACK CHRISTIAN CHURCHES: The National Baptist Convention allows each congregation to determine its views on abortion. The African Methodist Episcopal Church opposes abortion rights.
E. QUAKERS (SOCIETY OF FRIENDS): The organization is diverse and Friends hold various opinions on the morality and legality of abortion. The Cape Cod Quakers’ website states that some local groups have approved legal abortion with proper medical care, while favoring earlier steps to minimize the need of abortion.
F. MORMONS: The Church of Latter Day Saints counsels its members not to have or help someone have an abortion. Members may be disciplined or expelled for such acts. Exceptions are made for pregnancies resulting from rape or incest, when a doctor determines that the mother’s life or health is in serious jeopardy, or when the fetus has severe defects incompatible with life. The LDS Church has not officially favored or opposed legislative proposals.
G. ASSEMBLY OF GOD: This denomination’s official position is that members should not have abortions except when the mother’s life is at risk. Church members who have been advised by their doctors to abortion their pregnancies should consult church leaders and pray for divine intervention.
The legality of abortion in modern cultures is rooted in concepts of individual rights, autonomy, and privacy pushed far beyond scriptural teaching. We therefore expressly deny that this supposed legal “right” automatically confers upon the pregnant woman the moral right to abort her unborn child.
H. ROMAN CATHOLICISM:
A Roman Catholic who aborts her pregnancy is automatically excommunicated.
Prior to 380 CE, many Christian leaders condemned all abortions. In 380, the Apostolic Constitutions allowed abortion if done early in pregnancy, before the fetus was recognizably human and had a soul.
St. Augustine (354–430 CE) accepted the Aristotelian Greek Pagan concept of “delayed ensoulment.” He wrote that a human soul can not live in an unformed body. Thus, abortion is not murder because no human soul is destroyed.
Pope Innocent III (1161–1216) determined that a monk who had arranged for his lover to have an abortion was not guilty of murder if the fetus was not “animated” at the time of the abortion. He said that the soul enters the body of the fetus at quickening, when the woman first feels movement. Abortion prior to quickening was a sin, but a less serious sin because it terminated a potential human person, not an actual person.
Pope Sixtus V (1588) reversed Innocent III, and threatened those who carried out abortions at any state with excommunication and the death penalty.
Pope Gregory XIV (1591) revoked Sixtus V’s Papal bull, and reinstated the quickening test, which he determined happened 116 days into pregnancy.
Pope Pius Ix (1869) reversed Gregory XIV, and declared the soul enters the fertilized egg.
Pope Leo XIII (1878–1903) issued a decree in 1886 that prohibited all procedures that directly killed the fetus, even to save the life of the mother.
The Roman Catholic Church decided its doctrine when men believed in preformationism, that is, a fully formed miniature human was in the uterus from conception until birth. Invention of the microscope and cell theory has not caused the Church to revise its position.
If a woman is diagnosed with an ectopic pregnancy (the fertilized egg implants in the Fallopian tube or outside the uterus), the Roman Catholic Church takes a position on what medical treatment she may have and remain a Catholic in good standing. She is not allowed to take the abortion pills. She must have major surgery where she is put under general anesthesia and her abdomen cut open. She is not allowed to have the Fallopian tube surgically opened, the embryo removed, and the Fallopian tube sutured shut. However, the Church permits removal of the entire Fallopian tube, which indirectly kills the embryo. Because the embryo’s death is indirect, it is permitted. Note the lack of concern for the mother’s life and health. To avoid excommunication she must undergo major surgery under general anesthesia, risk infection, endure pain, lose a body part necessary for fertilization, be hospitalized for several days, and have a long recovery, when she could have taken medication and quickly ended the the ectopic pregnancy safely with lower financial costs.
In November 2009, a pregnant woman aged 27 years was admitted to a Roman Catholic hospital in Phoenix, Arizona. She was eleven weeks pregnant with her fifth child. She was suffering from heart failure, and her doctors told her that if she continued the pregnancy, she would probably die. The official Roman Catholic Church position is that both mother and fetus should be allowed to die. A hospital administrator, Sister Margaret McBride, approved an abortion pursuant to Directive 47 which allows some procedures that could kill a fetus to save the mother. When Bishop Thomas J. Olmstead heard about the abortion, he declared that Sister Margaret was automatically excommunicated. The diocese severed its ties to the hospital when the hospital would not promise not to save other pregnant women’s lives in the future. In December 2011, the hospital announced that Sister Margaret was no longer excommunicated. As a condition, she had to confess to a priest and resign her position at the hospital.
In February, 2019, Pope Francis acknowledged that priests and bishops had sexually abused nuns. Some nuns became pregnant and were forced to have abortions.
Ireland is a predominately Roman Catholic country. The Church has had a powerful influence over the government since Ireland gained its independence from the United Kingdom in 1922. Divorce, contraception, and abortion were illegal, and children of marriages between Catholics and Protestants had to be brought up Catholic. The church controlled hospitals, schools and many social services. Scandals have rocked the Irish Catholic Church in recent years: the Magdalene Laundries, illegal adoptions without the mother’s consent, the hidden graves of infants and children, and sexual abuse of children and teenagers by priests. The death of Savita Halappanavar from septicemia in 2012 occurred because an Irish hospital refused to perform an abortion after a miscarriage.
The Irish people voted for constitutional amendments legalizing divorce in 1995, same sex marriage in 2015, and abortion in 2018.
I. EVANGELICAL CHRISTIANITY
1. History
We will now see how evangelical Christians came to oppose legal abortion, and why this bill is before the Alabama Legislature.
Until 1979, evangelical Christian leaders supported legalization of abortion. They did not believe that ensoulment occurred at fertilization. In 1968, a symposium sponsored by the Christian Medical Society and Christianity Today magazine, refused to call abortion a sin, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, the Southern Baptist Convention called for legalization of abortion when pregnancies were likely to damage the emotional, mental, and physical health of the mother and in cases of rape, incest, and severe fetal deformity. The attorney who filed Roe’s case was a member of Park Cities Baptist church in Dallas. When Roe v. Wade was decided on January 22, 1973, Pastor W. A. Criswell of the First Baptist Church in Dallas, Texas and former SBC president said
I have always felt that it was only after a child was born and had a life separate from its mother that it became an individual person, and it has always, therefore, seemed to me that what is best for the mother and for the future should be allowed.
The Southern Baptist Convention re-affirmed its support of legal abortion in 1974 and 1976. W. Barry Garrett of Baptist Press wrote “Religious liberty, human equality and justice are advanced by the Supreme Court decision.” He said that this was a “strict constructionist” court, not a liberal court.
After Brown v. Board of Education ordered desegregation of public schools, private schools were opened which only admitted white students. President Nixon ordered that the IRS deny tax exemptions to segregated schools, pursuant to the Civil Rights Act. The policy was upheld in federal court. This got the attention of evangelical Christians, including Jerry Falwell and Bob Jones University.
At the same time, conservative political activist and Heritage Foundation co-founder Paul Weyrich reasoned that, if Republicans could get evangelical Christians involved in politics, they would be a powerful voting bloc. “The new political philosophy must be defined by us [conservatives] in moral terms, packaged in non-religious language, and propagated throughout the country by our new coalition,” Weyrich wrote. Weyrich tried different issues (pornography, prayer in schools, the proposed ERA); “I was trying to get these people interested in those issues and I utterly failed,” Weyrich said.
While Bob Jones Jr. argued that racial segregation was mandated by the Bible, Weyrich and Falwell framed their argument in terms of religious freedom rather than racial segregation. In 1976, Bob Jones University lost its tax exempt status. Weyrich saw an opportunity after Jimmy Carter became president, and blamed Democrat Carter for the policy.
Weyrich and Falwell recognized that defending racial segregation would be a challenge. The issue rallied leaders, but they needed something else to mobilize evangelical voters. Weyrich saw how Roman Catholics defeated a Democratic senator from Iowa by leafleting church parking lots just prior to the election. He urged evangelical Christian leaders to seize on the abortion issue as a rallying cry to deny re-election to President Jimmy Carter. While President Carter worked to reduce the incidence of abortion, he refused to endorse a constitutional amendment outlawing abortion. Ronald Reagan made a campaign speech to ten thousand evangelical Christians in Dallas in August 1980, and criticized the IRS’ decision denying tax exemptions to private schools. Evangelical voters defected from Carter to Reagan, and Jerry Falwell claimed credit.
A coalition of Christian Right groups has prepared bills and talking points to be used by legislators called Project Blitz. The project organized state legislative “Prayer Caucuses.” Rep. Rich Wingo (R) and Rep. David Faulkner (R) are readers in the Alabama Legislative Prayer Caucus and co-sponsors of HB-314. Project Blitz was behind a state constitutional amendment authorizing public schools to post “In God We Trust” on school grounds.
2. Presbyterian Church of America and Briarwood Presbyterian Church.
Briarwood Presbyterian Church in Jefferson County was formed in 1960. Originally it was part of the Presbyterian Church in the United States, but it left in a schism because it opposed the PCUS theology pertaining to the deity of Jesus Christ and the inerrancy and authority of Scripture, and opposition to racial integration because integration was contrary to their literal reading of the Bible. On December 4, 1973, the first General Assembly of a new denomination, the Presbyterian Church in America, was held at Briarwood. While the Presbyterian Church USA ordains women to the clergy, PCA does not. PCA teaches that scripture is inerrant.
The significance of exclusion of women from leadership roles, and the belief in scriptural inerrancy is significant, as it means that PCA and Briarwood do not take into consideration scientific advances made since the beginning of the Christian Era, and its doctrines exclude female influences. It’s abortion doctrine reflects a belief in preformationism, rather than cell theory.
The position of Briarwood and PCA is stated in its Report on the Ad Interim Committee on Abortion issued in 1978. The Committee was made up of nine male church elders.
While reading this statement of doctrine, I found it contains the same errors and improper terminology incorporated into HB 314 and SB 211. It rejects the correct medical definition of abortion:
In medicine, an abortion is the premature exit of the products of conception (the fetus, fetal membranes, and placenta) from the uterus. It is the loss of a pregnancy and does not refer to why that pregnancy was lost. A spontaneous abortion is the same as a miscarriage.
The bill under consideration rejects the medical definition of abortion and incorporates the definition written by elders of the Presbyterian Church of America.
PCA doctrine declares that a fertilized egg has personhood, which is contrary to US law. The 14th Amendment, §1 states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Thus, live birth is a prerequisite for legal, natural personhood. (Personhood is also conferred upon corporations, which are considered artificial persons.)
PCA’s report declares :
It must be pointed out here that this developing baby is a separate but dependent new life with its own chromosomal pattern and at no stage of development can be considered as an appendage or part of the mother’s own body.
It sounds as if PCA believes that humans are marsupials rather than placental mammals, and pregnant women carry embryos and fetuses in a pocket!
The embryo or fetus is a part of its mother in that it is wholly dependent upon her for nourishment and oxygen. It can not breathe air prior to birth. It’s blood circulates differently during gestation than it will after birth. An organ called a placenta develops. It is connected to a woman’s uterus during pregnancy. The embryo or fetus is connected to the placenta by the umbilical cord. Nutrition and oxygen are taken from the mother’s blood, through the placenta, and delivered to the embryo or fetus. Embryos and fetuses produce carbon dioxide and waste products which must be removed. These travel through the umbilical cord to the placenta and thereon to the mother’s circulatory system.
English and United States common law recognized the embryo or fetus as part of its mother until an infant was born alive. Edward Coke wrote of the “born alive rule” in Institutes of the Laws of England:
If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the child dyeth in her body, and she is delivered of a dead childe, this is great misprision [a misdemeanor in modern parlance], and no murder; but if he childe be born alive and dyeth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.
Similarly, inheritance depended upon live birth. A stillborn infant could not inherit.
Since Roe v. Wade, its opponents have encouraged states to adopt fetal homicide laws which override common law. Pregnant women are not in a position to question the premise that their dead fetuses are not a part of their bodies, as they are crime victims, often dead, and not parties to the criminal cases. Opponents, including the sponsors of this bill, now use the existence of these laws to attack the fundamental rights of pregnant women. See § 2(c).
The Presbyterian Church of America states the following in its report:
In the majority of countries where legal safeguards from abortion have been eliminated a woman is more likely to die from legal abortion than she is if she were to carry the pregnancy to term. This is true for legal abortions performed on healthy women by licensed physicians in fully accredited medical facilities.
This is false.
A 2012 study found that
Legal induced abortion is markedly safer than childbirth. The risk of death associated with childbirth is approximately 14 times higher than that with abortion. Similarly, the overall morbidity associated with childbirth exceeds that with abortion.
As regards the separation of church and state imposed by the Establishment Clause of the First Amendment, PCA says the following:
According to Scripture, then, there can be no question but that both church and state are divine institutions. Both owe their authority, not to autonomous human decisions, but to God.
If that is the case, God approved the horrendous acts of governments complained of in the bill: the Holocaust, slavery in he USA, Stalin’s purges, and Mao Zedong’s Great Leap Forward, as well as the Trail of Tears and genocide of Native Americans. God also approved the elections of presidents held in low regard by the Republican sponsors of this bill.
While our leaders may pray in public, it is in order to appear pious, and not because they were chosen by Divine Right. As written in the Book of Matthew:
And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward. But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly.
Briarwood Presbyterian Church is intimately involved with SB 211 and HB 314. The bill’s author, attorney Eric Johnston, is reportedly a member of the church. He lobbied for the creation of a Briarwood Presbyterian Church police force in 2017. One of the speakers to the House Health Committee, Rachel Blackmon Bryars, is a graduate of Briarwood’s school. She has worked professionally in Republican public relations, including jobs at Yellowhammer and the Alabama Policy Institute, where her husband is also employed. Ms. Blackmon said that since she was happy she did not abort her out of wedlock pregnancy, it should be a crime for other women in less desirable circumstances to be able to have safe, legal abortions.
The connection of Briarwood to the infant adoption business is concerning. Briarwood member Wales Goebel founded a chain of crisis pregnancy centers called Sav-A-Life, and a religious adoption agency called Lifeline Children’s Services. Goebel modeled his programs after those of the Roman Catholic Church. Like the Catholic Church in Ireland, pregnant women are proselytized to, shamed, told that their infants will be better off in Christian homes with married couples. Lifeline’s Facebook page contains the following post, dated May 1, 2019:
…join us for our Birthmother’s Day Brunch on Saturday, May 11th from 10:30–12:30pm! Our annual brunch provides a way for birthmothers to connect and celebrate their bravery as they are reminded of their value in Christ.
“That Saturday, I was changed by their stories. I was humbled by their authenticity. I was reminded that God’s redemptive plan isn’t easy. In fact, it’s far from it. But, when our eyes are open, we can see that it always points us back to Him.
Lifeline has grown from a small group handling local cases in Alabama to a world wide adoption broker with a huge staff and annual revenue exceeding seven million dollars. Representatives from Lifeline spoke to the House Health and Senate Judiciary Committees and urged them to criminalize abortion so that their agency would have a supply of infants to provide to infertile people and people with money.
IV. THE SCIENCE OF EMBRYOLOGY AND FETAL DEVELOPMENT
It is my observation that some Alabamians are woefully uneducated on the subjects of embryology and fetal development. Some people hold beliefs about pregnancy which predate the invention of the microscope. I recommend this article about A History of Embryology (1959), which discusses our limited knowledge of the female side of reproduction throughout history. It discusses the theory of preformationism, a belief disproved after the microscope was invented but apparently believed by many opponents of legal abortion. Belief in preformationism is indicated when people describe a newly fertilized egg as a baby or unborn child, and when they distribute tiny dolls in the shape of a neonate and insist that it accurately depicts an embryo or fetus. Photographs of developing human embryos taken with an electron microscope disprove their claims.
The author of the bill, Eric Johnston, claims that advances in sonogram technology support criminalization of abortion. Perhaps Mr. Johnston did not know anything about embryology or fetal development until someone showed him pictures. While we can now see embryos and fetuses in utero, women, midwives and doctors have seen embryos and fetuses that were spontaneously aborted since before history began.
Doctors have dissected and studied embryos, fetuses and newborn infants since the 1600s. Drawings by Govard Bidloo (1649–1713), William Smellie (1697–1763), William Hunter (1718–1783), and Christian Wilhelm (1831–1892), and models made by Giuseppe Galletti (died 1891) showed the development of embryos and fetuses long before sonograms were invented.
Advocates of criminalization of abortion claim that a heart beats in the chest of an embryo immediately after the mother’s missed menstrual period. This is false, and of dubious significance, as cardiac activity is only one sign that a born person is alive; born people breathe and have brain waves as well.
The embryonic heart begins with heart tubes which produce fetal cardiac activity, often called a heartbeat by lay people. By the eighth week of pregnancy four chambers of the heart have formed. Not until twenty weeks of pregnancy is the fetal heart fully organized. An embryo’s or fetus’ heart tubes and heart pump its blood so that it can receive oxygen and nutrients from the mother through the placenta. Waste is carried away to be dealt with by the mother’s body. Contrary to cultural beliefs, feelings and thoughts do not emanate from the heart.
Neuroscientist Michael Gazzaniga, PhD discussed the question of when society should confer moral status on an embryo. At 40 to 43 days, the fetus has begun development of the brain, and electrical brain activity begins to occur. This kind of brain activity consists of unorganized neuron firing of a primitive kind. It is “not coherent activity of the kind that underlies human consciousness, or even the coherent activity seen in a shrimp’s nervous system.” Dr. Gazzaniga said this kind of neural activity is present in clinically brain dead patients.
Dr. Gazzaniga continues: between the 8th and 10th week, the cerebrum begins development. Neurons proliferate and migrate throughout the brain. The first ( a small one) interhemispheric connection develops. Reflexes appear. Development continues. “By week 13, the fetus has begun to move.” The corpus callosum begins to develop. “ Yet the fetus is not a sentient, self-aware organism at this point; it is more like a sea slug, a writhing, reflex-bound hunk of sensory-motor processes that does not respond to anything in a directed, purposeful way.”
During the 17th week, synapses begin development, allowing communication between neurons. “ Synaptic activity underlies all brain functions. Synaptic growth does not skyrocket until around postconception day 200 (week 28).”
“No sustainable or complex nervous system is in place until approximately six months of gestation,” according to Dr. Gazzaniga. “… in judging a fetus ‘one of us,’ and granting it the moral and legal rights of a human being, I put the age much later, at twenty-three weeks, when life is sustainable and that fetus could, with a little help from a neonatal unit, survive and develop into a thinking human being with a normal brain. This is the same age at which the Supreme Court has ruled that the fetus becomes protected from abortion.”
To have thoughts and feelings, one must have a functioning brain and nervous system. A fetus is not capable of feeling pain before the 29th or 30th week, if then. It is not possible for a fetus to have consciousness until the third trimester of pregnancy, if then:
Consciousness requires a sophisticated network of highly interconnected components, nerve cells. Its physical substrate, the thalamo-cortical complex that provides consciousness with its highly elaborate content, begins to be in place between the 24th and 28th week of gestation. Roughly two months later synchrony of the electroencephalographic (EEG) rhythm across both cortical hemispheres signals the onset of global neuronal integration. Thus, many of the circuit elements necessary for consciousness are in place by the third trimester.
Medical texts don’t discuss the timing of ensoulment, as the soul is a religious concept for which no scientific evidence exists.
V. THE BILL UNDER CONSIDERATION
A. THE RULE OF LAW
The US Supreme Court is the final authority on the meaning of the US Constitution. We are not free to substitute our personal opinions for Court decisions. We follow the rule of law. The Constitution restricts the arbitrary exercise of power by federal, state and local governments. Laws are to be clear, stable, just, and accessible to the public.
The Alabama Constitution provides the following Oath of Office in §279:
I, …, solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Alabama, so long as I continue a citizen thereof; and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter, to the best of my ability. So help me God. [Emphasis added.]
It’s a common misconception that rights must be listed in the Constitution. The 9th Amendment states that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. The Supreme Court has recognized the rights to privacy, self-defense, to marry, to have and raise children, and to travel between states as fundamental rights.
This bill violates pregnant women’s religious freedom, liberty, and privacy rights. It violates religious freedom by imposing the religious beliefs of certain religious groups on the entire population, with criminal penalties for noncompliance. It violates privacy and liberty rights for reasons discussed earlier.
If office holders fail to abide by SCOTUS decisions and follow the principle of stare decisis, they violate their oaths and the rule of law.
B. THE DECLARATION OF INDEPENDENCE
Reference is made in the bill to the Declaration of Independence, which is not part of our body of law. Women did not participate in its drafting, and no women’s signatures are affixed. Women were not the equals of men. Girls and unmarried women were under the dominion and control of their fathers. Married women were under the dominion and control of their husbands. Women’s rights to own property were limited or nonexistent. The few places that allowed women to vote took away their voting rights in 1777.
Some of the signers enslaved people. The founding fathers would go on to draft and ratify a constitution that protected the enslavement of people of African descent.
The authors and sponsors of the bill must be reminded of what Abigail Adams wrote to her husband, John in 1776: “I desire you would Remember the Ladies, and be more generous and favourable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could.”
C. THE ACCUSATION OF GENOCIDE
Mention must be made of the outrageous, disingenuous, and offensive comparison of pregnant women to oppressive and murderous governments. This assertion is intended to inflame emotions. A woman who takes pills to terminate her early pregnancy and bring on her menstrual cycle, or who has professional medical assistance in surgically aborting her pregnancy, is not comparable to Joseph Stalin, Pol Pot, Adolf Hitler, Mao Zedong, or the perpetrators of the Rwandan genocide, who killed born people.
I note that that the number of people murdered by Nazis is grossly understated in the bill. In addition to six million Jews, homosexuals, Roma (sometimes called by the derogatory term Gypsies), Slavs, Poles, Serbs, Russians, Communists, Socialists, Jehovah’s Witnesses, and disabled Germans were murdered, bringing the total killed to eleven or twelve million.
Contrary to anti-abortion propaganda, Margaret Sanger was not a Nazi, and her clinics offered contraception, not abortion. Hitler ordered books by Margaret Sanger burned. During the Weimar Republic, contraception and abortion was available in Germany. Laws restricting abortion had been loosely and irregularly enforced. After Hitler rose to power, birth control and sex advice clinics were closed.
Hitler forced women to have abortions, handicapped children were euthanized, and people were forcibly sterilized. Hitler believed that government should decide which pregnancies to abort, not individual women. Women with fair skin and hair color were denied abortions. Women whose fetuses were suspected of being defective, or who had genes not desired by the Nazis, had their pregnancies aborted. Dr. Josef Mengele performed experiments and vivisection on pregnant Jewish women. A Hungarian gynecologist, Dr. Gisella Perl, saved pregnant Jewish women from Dr. Mengele and death by secretly performing abortions in the barracks.
Women who decide that their pregnancies should be aborted are unfavorably compared to practitioners of slavery in the USA. Slavery reduced black people to legal non-entities whose bodies belonged to their owners. A better slavery metaphor compares women to slaves and opponents of women’s rights to their masters.
D. INDIVIDUAL RIGHTS VS GOVERNMENT POWER OVER INDIVIDUALS
The political question is whether individual women, or government, have the power to make women’s medical and reproductive decisions. The bill attempts to give government the power, and take it away from individual women. The bill treats women as possessions of the State, or incubators. It assumes that we are not capable of reasoning, resolving moral issues, and making responsible decisions. It declares that government knows best. Perhaps the authors and sponsors of this bill don’t realize that a government with this power, such as China and North Korea, can legally force women to have medical procedures against their will. Government could order sterilization, Cesarean sections, and abortions. A government might assert an interest in reducing Medicaid expenditures for infants needing intensive care or long term nursing care due to severe birth defects. A government which objects to birthright citizenship for children of immigrant mothers could order that their pregnancies be aborted.
It is not legal in this country to force someone to use all or part of their body for the benefit of another person. The Pennsylvania case of McFall v. Shrimp explains the legal reasoning for this.
Alabama Code §22–19–162 et seq. protects a dead person’s ownership of his organs. Before a deceased persons body may be used for scientific study, or organs harvested for transplantation to people who need those organs, that person must consent to the donation, or an authorized person consent on their behalf. Isn’t a woman’s living body deserving of the same protection?
E. FAILURE TO USE PROPER SCIENTIFIC NOMENCLATURE
This bill fails to use of proper scientific nomenclature. Scientists often use terms which are derived from Latin words because Latin is a dead language. The meaning of those words don’t change with usage. In the bill, the terms baby or child are used in lieu of the proper terms: zygote, embryo, fetus, and infant. This is an attempt to evoke emotions and deceive readers about gestational stages. It reflects a belief in preformationism, a concept long rejected by the scientific community in favor of cell theory. The medical community defines an abortion as a termination of pregnancy other than birth. It includes spontaneous and therapeutic abortions, which this bill refuses to include in its definition of abortion.
F. FAILURE TO PROTECT VICTIMS OF RAPE OR INCEST
The bill cruelly makes no exceptions for victims of incest or rape. While working in juvenile court, I represented women who were impregnated by rape and incest, one of whom was born from an incestuous relationship with the perpetrator. She gave birth; her son/brother was severely disabled and totally dependent on others for his care.
G. WOMEN OF MEANS ARE EXCEPTED FROM THE BILL’S DRACONIAN PROVISIONS
The bill legalizes abortions for women of means, and criminalizes abortion for low income women. A woman who has good health insurance or money can hire a psychiatrist and be diagnosed with a serious mental illness with impulses to harm or kill herself. She can then legally have a safe and legal abortion in a hospital, as was quietly done in Alabama prior to Roe v. Wade. Young women, rural women, college students, women working at low paying jobs won’t be able to get an appointment with a cooperative psychiatrist, or even know that the law makes an exception for women who can hire psychiatrists to write letters for them. Racial bias and discrimination in health care may deprive pregnant black women of unbiased diagnosis and treatment, so legal and safe abortions won’t be as available to them as to white women.
Women who have abortions in hospitals pursuant to this law may subsequently lose custody of their children to vindictive fathers of their children or child protective services. Their certified medical records are admissible in evidence to prove a history of mental illness and that they are a danger to their children.
H. INTERFERENCE WITH DOCTORS’ DUTIES TO THEIR PATIENTS.
Criminalization of abortion is opposed by the American Congress of Obstetricians and Gynecologists:
ACOG is also deeply concerned about how the criminalization of abortion after six weeks gestation will affect ob-gyns’ ability to make ethical and professional decisions in the best interest of their patients. Under the bill, when a patient’s health is threatened by pregnancy, the physician will be forced to wait to terminate the pregnancy until the patient’s condition so deteriorates that her life is in jeopardy. As a result, physicians who follow the law may risk negligence claims from the patients. And, physicians who act in the best interests of their patients by providing medically necessary care will face criminal sanctions. This places physicians in an impossible position between the law and providing evidence-based, individualized, and medically necessary care to their patients.
Doctors have a free speech right to advise their patients in accordance with their training and experience. A North Carolina law requiring physicians to display a sonogram image of the patient’s uterus to her, and describe it to a patient was held to be “compelled speech that impedes on the physician’s First Amendment rights with no counterbalancing promotion of state interests.”
Stuart v. Camnitz (4th Cir.Ct.Apps.2014), certiorari denied by SCOTUS.
I. THE BILL IS BASED ON FALSEHOODS ABOUT EMBRYONIC AND FETAL DEVELOPMENT AND PREGNANCY.
The bill asserts that recent medical advances prove that an embryo’s heart starts to beat at approximately six weeks after the mother’s last menstrual period. An embryo at this stage has heart tubes, not a fully developed heart. The heart isn’t fully organized until twenty weeks. The proper scientific term is fetal cardiac activity. The phrase “medically illiterate” has been used by one expert to describe so-called Fetal Heartbeat bills.
The authors and sponsors of the bill call the embryos pictured below “unborn children” and “babies” because they are disingenuous and wish to mislead the public.
This is a human embryo at Carnegie stage 9, between 19 and 21 days after fertilization or 5 weeks after the first day of the last menstrual period. The photo is taken with an electron microscope. The image has been greatly enlarged. The embryo is actually only 1.5 to 2.5 mm in size.
For the benefit of those of us not accustomed to the metric system, consider this ruler, which is 2X the size of the wooden school ruler in my desk.
More photographs are available.
J. VIOLATION OF RELIGIOUS FREEDOM
This bill is unconstitutional as it is based upon the doctrine of a single church denomination with influence in the state of Alabama. It violates both the US Constitution, and §3 of the Constitution of Alabama’s Declaration of rights.
That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination, or mode of worship; that no one shall be compelled by law to attend any place of worship; nor to pay any tithes, taxes, or other rate for building or repairing any place of worship, or for maintaining any minister or ministry; that no religious test shall be required as a qualification to any office or public trust under this state; and that the civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his religious principles.
This bill would make it a felony to act contrary to the doctrines of the Presbyterian Church in America.
K. POLITICAL MOTIVATIONS FOR BILL
According to media reports, attorney and conservative activist A. Eric Johnston was the primary author of this bill. In 2010, Johnston ran for the Republican nomination to the Supreme Court of Alabama. He has advocated for religious freedom for those who share his religious beliefs, and opposed religious freedom for those who hold other beliefs. Mr. Johnston has a long history opposing precedents of the United States Supreme Court in cases involving school prayer, proselytizing in school and school functions by evangelical Christians, same-sex marriage, and abortion. Johnston’s jurisprudence could fairly be described as radical, as he does not respect or follow the principle of stare decisis. This bill was drafted with the intent to challenge Roe v. Wade and its progeny for purely political purposes: raising money and getting Republicans elected to public office, as planned by Paul Weyrich in order to achieve other Republican objectives unrelated to abortion. Mr. Johnston and the bill’s sponsors are following the plan laid out by the late conservative activist in order to increase their political power.
Bill Britt of the Alabama Political Reporter wrote that, “[a]ccording to Johnston, efforts by then-Governor Bob Riley allowed over a million dollars to flow through [Johnston’s] nonprofit, Citizens for Better Alabama, into to the hands of Mike Hubbard.” Britt quoted Johnston: “Someone from the governor’s [Bob Riley’s] office would call and say you’re getting a check for $200,000 and you’re going to get a bill at the same time from [Mike] Hubbard’s deal and you need to pay that, that is what that money is for.”
Alabama journalist Josh Moon has called Eric Johnston a “shyster” and a “front man for the political groups that wealthy churches use to threaten lawmakers over potentially costly legislation.” After the death of 5-year-old Kamden Johnson, Rep. Pebblin Warren filed a bill to require that church owned and operated day care facilities be licensed by the Department of Human Resources, just like other day care centers. Johnston lobbied against Warren’s bill, which was opposed by wealthy churches.
When church and state are intertwined, it is bad for both church and state. In a 1803 letter, James Madison wrote “The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe in blood for centuries.”
L. COSTS TO ALABAMA TAXPAYERS
One unconstitutional statute cost taxpayers $1,700,000.00 for the plaintiffs’ attorneys fees and expenses. Three more unconstitutional statutes are still in litigation, and will accrue similar costs. If this bill is enacted, taxpayers can expect to pay approximately $8,500,000.00 towards the plaintiffs’ attorneys fees and costs for five unconstitutional statutes. The bill’s sponsors will pay zero dollars of the costs of litigation, but can expect to receive campaign contributions and votes.
Thank you for reading. Vote against this bill.
Attorney General Steve Marshall: Now that the bill has passed the House and Senate, and signed by Gov. Ivey, it’s up to you. For the reasons stated above, I ask you to uphold the Alabama and US Constitutions and decline to defend this unconstitutional legislation. Consent to have a federal district judge declare it unconstitutional. Save the state millions of dollars, and Alabama women a lot of anguish. Thank you.
©Copyright, Elizabeth Potter Graham.
This document may not be reproduced in whole or part without the author’s permission.
Twitter: @Ms_Liz2
POST SCRIPT: This letter was revised after the House Health Committee hearing to include additional scientific information about embryonic and fetal brain development. Dr. Lance Radbill, a Homewood osteopath currently specializing in gynecology, made a misleading statement suggesting that an eleven week fetus is capable of consciousness. Consciousness is not possible until much later in pregnancy. Dr.Matthew E. Phillips, a Montgomery OB/GYN, also implied that the primitive brain waves detected early in fetal development were significant. These brain waves are similar to those found in clinically brain dead patients.
After reading the doctrine of the Presbyterian Church of American on abortion, revisions were made to prove that this bill was drafted by a member of that church and incorporates definitions and doctrine of his church.
After passage of the bill, I edited the letter to address Alabama Attorney General Steve Marshall.