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A Voice from Fly-Over Country
March 11, 2009

Abortion Rights: Back to the States?
by Robert L. Hale

MINOT, NORTH DAKOTA —North Dakota Republican Representative Dan Ruby introduced a bill that has caused concern among abortion proponents on the national level.

The 105-word bill does not mention abortion. The operative part of the bill states:  “For purposes of interpretation of the constitution and laws of North Dakota, it is the intent of the legislative assembly that an individual, a person, when the context indicates that a reference to an individual is intended, or a human being includes any organism with the genome of homo sapiens.”

“Genome of homo sapiens,” in common language, means a person, individual, or human being exists at conception.

Why has this bill generated so much concern? Because, if this bill becomes law in North Dakota and is upheld by the courts, it will re-establish state sovereignty relative to defining “person” and allow states to again stipulate how they choose to protect persons.

Justice Blackmun’s question relative to when life begins that he posed in the January 22, 1973, Roe v. Wade decision has since been answered. Science now recognizes that at the moment of conception a unique individual has been created and is alive. Not viable, but certainly alive and unique.

Roe v. Wade was the result of a Texas case involving the state’s law proscribing abortion. The state of Texas argued that it has an interest in protecting human life and that its laws proscribing abortion were valid and proper.

The turning issue of Roe, according to Blackmun, was whether we were dealing with a question of life or of liberty, the latter understood in terms of privacy. Although Blackmun stated, “The Constitution does not explicitly mention any right of privacy,” he went on to create one for purposes of the opinion.

Addressing the life issue he said, “Some of the argument for this justification [laws against abortion] rests on the theory that a new human life is present from the moment of conception. The state’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail.”

Thus, if THE question of life trumped the question of liberty — the newly created privacy interest — then states would have a right to regulate the process.

Blackmun writes, “The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment. The Constitution does not define ‘person’ in so many words.”

The bill seeks to address the concern raised by Justice Blackmun. Representative Ruby’s bill defines, through legislative intent, how “person” in the North Dakota constitution will be defined. The question of rights would be directed back to the court
to determine whether — since the U.S. Constitution does not define “person” — it is left to the states to do so.

If the states should define person for purposes of their constitutions, then each state would be able to define “person” and provide protection as it sees fit. In short, abortion proponents are terrified by the possibility that they would have to battle state by state to legalize abortion. Roe v. Wade stated that, since there was no understanding of when life began, the “liberty” interest trumps the “life” interest. The North Dakota bill would define person as being in existence from the moment of conception — genome homo sapiens. The fight to keep abortion cheap, legal, and unlimited would have increased by a factor of 50.

The situation may be even more dire for abortion proponents. States may determine that the only exception to permitting an abortion would be the life of the mother. We all know that medical advances have made this circumstance truly rare.

The Montana legislature passed a similar bill in recent weeks. States want their sovereignty, and this may well be how they re-establish it.

States’ rights as well as the lives of millions hang in the balance.

See this article at News Blaze.

A Voice from Fly-Over Country archives

A Voice from Fly-Over Country is copyright © 2009 by Robert L. Hale and the Fitzgerald Griffin Foundation. All rights reserved.

Robert L. Hale received his J.D. in law from Gonzaga University Law School in Spokane, Washington. He is founder and director of a non-profit public interest law firm. For more than three decades he has been involved in drafting proposed laws and counseling elected officials in ways to remove burdensome and unnecessary rules and regulations.

See a complete biographical sketch.

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