| By Mary Summa, J.D.Through the efforts of many, who want the state to be known as “progressive,” the North Carolina General Assembly, in 2007, authorized “Medical Order for Scope of Treatment” or a “MOST” document. This action by lawmakers may be the most dangerous assault on the right to life and dignity of the human person since Roe v. Wade.Patterned after the POLST (Physician Orders for Life-Sustaining Treatment) Paradigm, a “right to die” Oregon program, MOST is a two-page document which may supercede the wishes of a patient. In addition to Do Not Resuscitate Orders (DNR’s), it can be used to limit a sick patient’s medical treatment, including life-sustaining food and hydration provided by a feeding tube and medications. Medically, it carries the weight of a doctor’s order, and legally, it protects a doctor from criminal or civil liability. It is attached to the patient’s medical records.The MOST document threatens a patient’s right to informed consent about the withdrawal of food and water given by a feeding tube and life-sustaining medicines. It is said that “the devil is in the details,” and that is certainly the case here:The MOST may suspend previously executed Advance Medical Directives, including Living Wills, Medical Health Care Powers of Attorney, or Protective Medical Directive Documents. If a patient has specifically stated that he wants food/water and medicines, those wishes may be ignored.Unlike other Advance Medical Directives, which require the signature of the patient, with the MOST document, a “patient representative” can sign it. A family member will suffice, but if a family member is not “reasonably available,” the right to signing falls on “an individual with an established relationship with the patient who is acting in good faith and can reliably convey the wishes of the patient.” The terms “established relationship,” “good faith,” and “reliably convey” are left undefined. Furthermore, if these individuals are not “reasonably available,” a doctor can make the deadly decision to withhold medicines or artificial food and water on his or her own.
Unlike other Advance Medical Directives, which require that the patient sign the original document in the presence of notary, a copy of the MOST can be signed by a “patient representative” and faxed in to the hospital or health care facility. The authenticity of the signature cannot be verified because the signature does not need to be notarized. The MOST form does not require any witness signatures at all. In contrast, other Advance Medical Directives must be signed by two witnesses in the presence of a notary. Those witnesses attest to the mental competence of the patient and cannot be related to the patient by blood or by marriage, cannot be the patient’s physician or health care provider and cannot have anything monetarily to gain from the patient or his estate. Mistakenly, the Euthanasia Movement has equated liberty with autonomy. The North Carolina legislature has already legalized voluntary euthanasia by giving patients the legal right to direct the withholding of their own artificial food and hydration and life-sustaining medicines. MOST legislation catapults the State’s position to a whole new level. By ignoring long-standing procedures to ensure a patient’s right to consent, MOST provides opportunities for North Carolina doctors to involuntarily euthanize sick patients with impunity. The “First in Flight” state is fast becoming “First in Death.” Mary Summa is an attorney in Charlotte, North Carolina. Copyright © 2010. North Carolina Family Policy Council. All rights reserved. Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION. Originally appeared: “Babies for Sale — Buying and Selling Human Life in Surrogacy Agreements.” Family NC. Fall 2009.
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Archive for the ‘09 Mary Summa, JD’ Category
Slip–Sliding Down the Path of Euthanasia
In 09 Mary Summa, JD on 2012/06/21 at 9:11 AMBabies for Sale: Buying and Selling Human Life in Surrogacy Agreements
In 09 Mary Summa, JD on 2012/06/08 at 11:09 AM| By Mary Summa, J.D.“Babies for Sale.” Most of us would be horrified to read this headline in a local paper. Yet, that is exactly where certain lawmakers are trying to take North Carolina. Disguised as compassion for infertile couples, the North Carolina legislature has begun considering measures that would codify and regulate the sale of human life for a “reasonable fee” to couples not required to be infertile or genetically connected to the child.Surrogate Pregnancies and Agreements Surrogate pregnancy is an arrangement whereby a woman bears the child of another person or couple. There are two types of surrogacy agreements: traditional surrogacy and gestational surrogacy. With traditional surrogacy, the surrogate agrees, by contract, to be artificially inseminated with sperm, and the surrogate, by contract, terminates her parental rights to the child. In many cases, the sperm belongs to the “intended father,” however, this is not required. With gestational surrogacy agreements, an embryo is implanted into the womb of the surrogate. As with traditional surrogacy arrangements, the surrogate, prior to conception, terminates her parental rights to the child and allows the “intended parent(s)” to adopt the child. Many times, the egg and sperm are those of the “intended parents.” However, again, there is no requirement that the child be genetically connected to the “intended parents.” In most cases, the surrogate is paid. These types of surrogacy agreements are called commercial surrogacy agreements. Legal History of Surrogacy Agreements Action by State Legislatures To date, North Carolina’s legislature has remained silent on the issue of surrogacy. Although no official record exists in the State as to those contracts that have been upheld and those that have been rejected, at least one commentator has argued that using the adoption laws, surrogacy agreements are lawful in North Carolina as long as payments to the surrogate are limited to expenses incurred.5 Surrogacy in North Carolina Bad Public Policy Treating Humans as Commodities. For over two centuries, this country has been committed to the belief that human beings are not chattel for sale on the open market. Traditionally, adoption laws have reflected this belief, and state legislatures and courts have carefully monitored adoption proceedings to ensure that any monies paid to the birth mother are for expenses incurred, not for the purchase of the child. Commercial Surrogacy agreements, both traditional and gestational, fly in the face of this long tradition. Some may argue that the price paid to the surrogate is not for the baby but for the services rendered by the surrogate. However, as part of the arrangement, the surrogate will relinquish her rights to the child prior to conception. If, in fact, the payment is for “services,” she would be allowed to keep the monies paid if she decides to keep the child. Her “services” would be over once the child is born. However, under commercial surrogacy agreements, a surrogate would be breaching the contract if she fails to surrender the child to the “intended parents” and would be required to return the funds paid.6 Paying the surrogate was particularly repugnant to the court in In Re Baby M. While the fee in 1987 was nothing compared to what surrogates receive today, in that case the court stated, “Whatever idealism may have motivated any of the participants, the profit motive predominates, permeates, and ultimately governs the transaction. … There are, in a civilized society, some things that money cannot buy.”7 Encourage Growth of a “Designer Baby” Industry. “[He] is laid back, calm and believes things will eventually work out fine. He is self-confident and does not get frustrated easily. He admires honesty, loyalty and reliability. His physical appearance is of a tall 6’2” man with brown eyes and black hair…He is currently a student studying for a BA in government.”8 This may sound like a “personal” ad in the local newspaper, but it is actually a description of “Donor #2941,” selling his sperm through a sperm donor bank in Virginia. In pursuing a misplaced “right” to have children, the U.S. has already started down the path of producing “designer babies” through in vitro fertilization and sperm and egg donations. The Internet is full of advertisements for sperm companies interested in buying, and selling sperm and eggs. These sales have been going on for years but as recently as 2007, the “Designer Baby” market took a giant leap forward with embryos for sale. The Abraham Center of Life opened in July 2006 and closed in 2007. Located in San Antonio, Texas, the Abraham Center of Life was the first, and hopefully the last, commercial enterprise making embryos for potential buyers. After reviewing information sheets detailing race, education, personalities and hair color of the sperm and egg donors, couples or single women could place their order. When asked by a reporter from the San Francisco Chronicle if she was selling “designer babies,” owner Jennalee Ryan responded, “Yeah. Why not?”9 The availability of surrogacy agreements will only lead further down the path of creating “designer babies,” a step which further degrades the sacredness of human life. Genetically engineering the creation of human life and his/her subsequent sale reduces the child to little more than a commodity, devoid of human dignity or a recognition that he or she is a creation of God, made in his image and likeness. Selling human life hearkens back to some of this nation’s most shameful and reprehensible days. Exploiting Women. Surrogacy Agreements have been described as “reproductive prostitution”10 where, like prostitution, women rent their bodies for the benefit of others. To ensure a high quality “product,” surrogates are screened for their size and intelligence. According to the Web site, thesurrogacysource.com, women must meet certain qualifications in order to make “the cut,” such as not being on government assistance, not having an arrest record, having reliable transportation, and having proportional height and weight. A first-time surrogate’s fee is $23,500 with an experienced surrogate receiving $33,500.11With fees that only go up from there, it is little wonder that the majority of surrogates are poor.12 Some may argue that all women, including the poor, should have the right to do what they want with their bodies. While this may sound liberating to some, this position contradicts long-standing public policy in this country. Women, rich or poor, are not allowed to prostitute themselves, nor are they allowed to sell their body parts. Renting body parts—in this case their womb—should be no different. As the court stated in the In Re Baby M case, “There are, in short, values that society deems more important than granting to wealth whatever it can buy, be it labor, love, or life.”13 Relegating poor women to the status of “baby machines” is not something in which this country or this State should participate. Threatening Children. Some commentators will argue that surrogacy agreements are comparable to adoption laws. However, a close review of each underscores the differences. The court in In re Baby M provides an excellent analysis of how adoption laws promote the best interest of the child, while surrogacy agreements ignore them.14 Monies Paid. In adoption, monies are paid to the birth mother after she becomes pregnant. These monies are for expenses during pregnancy and childbirth, and are closely monitored by the court. In contrast, in surrogacy arrangements, the birth mother is paid to become pregnant and the payment amount is not limited. Best Interest of the Child. Adoption laws require the state to closely screen potential adoptive parents. In contrast, in In re Baby M and most surrogacy arrangements, the “intended parents” are not screened by the state to determine their fitness as parents. Undermining the Family. Long-standing tradition in this country dictates that parents, not communities or government, have the right and responsibility to care for their children. This right will not be abridged absent evidence that the child is in imminent harm in the custody of his/her parents. Except in rare cases, voluntary relinquishment of parental rights is never irrevocable. In fact, most state courts will allow irrevocable relinquishment of parental rights only when a child is being turned over to a State agency.15 Adoption laws reflect this long-standing principle. After an adoption, a birth mother has a certain period of time during which she can reclaim her child. Surrogacy agreements require a surrogate to sign over her parental rights to the “intended parents” prior to conception. This contract, and the agreement to relinquish parental rights, becomes irrevocable once the surrogate becomes pregnant. In the In Re Baby M case, writing for the majority, Justice Wilentz argued: “The surrogate never makes a totally voluntary informed decision, for quite clearly any decision prior to the baby’s birth is, in the most important sense, uninformed, and any decision after that, compelled by a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment, is less than totally voluntary.”16 A Ticking Time Bomb North Carolina’s foray into surrogacy agreements has far broader implications than just giving infertile married couples the opportunity to have a baby with their genetic make-up. The bill did not require proof of infertility for the contract to be upheld. Indeed, only one chamber’s version required that there be two “intended parents” and that they be married, and there was no requirement that the child be in any way genetically linked to the “intended parents.” If this bill were intended solely for that purpose, these restrictions would have been in the original bill in both chambers. Second, the bill would have done little to protect the child. It did not require the “intended parents” to undergo any type of screening similar to adoption. It did not require psychological testing, home-site visits, etc. Anyone with enough money would be able to rent a woman’s womb, and buy a child. Furthermore, the bill provided no guidelines on the composition of the embryo. Since biblical times, laws have prohibited a person from marrying their next of kin to prevent the genetic abnormalities that result in children produced from that union. There were no limitations on the genetic composition of the embryos used in surrogacy arrangements. The egg of a sister could be combined with the sperm of a brother. SB 440 was deafeningly silent on the future of the child if the parents died prior to the child’s birth. Would the child be a piece of property bought by contract to be inherited by the estate? Would the child be treated as a child without a guardian, and would the child become a ward of the state? The proposed bill also ignored the well-being of the surrogate. Proponents of surrogacy agreements argue that this is a way for women to make money and that prohibition of these agreements only hurts these women. If this concern is legitimate, why not require psychological counseling for the surrogate on the effects of giving up a child as a condition of the contractual obligation to the “intended parents”? Why not allow the surrogate the right to revoke the relinquishment of her parental rights? While SB 440 did not contain these provisions, adoption laws do. Conclusion Footnotes 1. In re Baby M, (109 N.J. 396, 537 A.2d 1227, 77 A.L.R.4th 1 (1988). 2. Johnson v. Calvert (5 Cal. 4th 84, 19 Cal. Rptr. 2d 494, 851 P2d 776 (1993). 3. Mich. Comp. Laws Sec. 722 (1988). Also: D.C. Code Sec. 16-402 (1993). See also: Wash. Rev. Code Sec. 26.26.250 (1989). See also: N.Y. Dom. Rel. Sec. 123 (1999). 4. 750 Ill. Stat 47/25(b)(4) (2005). 5. “Growing a Baby For Sale or Merely Renting A Womb: Should Surrogate Mothers Be Compensated for Their Services?”, 6 Whittier J. Child & Fam. Advoc. 529 (2006-2007) at page 534 footnote 45. 6. “Bartering for Babies: Are Preconception Agreements in the Best Interests of Children?”, 26 Whittier Law Review 429 at 484. 8. See http://www.fairfaxcryobank.com/NewSpermDonors.shtml 9. “Embryos Made to Order”, San Francisco Chronicle, August 8, 2006. 10. See “The Public Policy Considerations of Surrogate Motherhood Contracts: An Analysis of Three Jurisdictions,” 3 Alb. L.J. Sci. & Tech 46 (1993) at p. 46. 11. See http://www.thesurrogacysource.com. 12. 3 Alb. L.J. Sci. & Tech 46 (1993) see footnote 30 at page 46. Mary Summa is an attorney in Charlotte, North Carolina. Copyright © 2009. North Carolina Family Policy Council. All rights reserved. Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION. Originally appeared: “Babies for Sale — Buying and Selling Human Life in Surrogacy Agreements.” Family NC. Fall 2009. |
Evil Silence
In 09 Mary Summa, JD on 2012/05/26 at 11:09 AMDeficiencies in the Born Alive Infants Protection Act
Warning: Some material in this article is of a graphic nature.
In 2006, near Miami, Florida, unlicensed healthcare workers at an abortion clinic performed a late-term abortion that resulted in the delivery of a live 23-week old baby girl. When they saw the baby struggling to breathe, the abortion workers stuffed the infant into a garbage bag and stashed her on the roof.1 In 2009, a Miami prosecutor charged the abortionists in the case with murder. Unfortunately, two years later, in 2011, the charges were dropped.
In 2008, in Philadelphia, Pennsylvania, a 32-week old baby survived an abortion. He was 19 inches long, and a witness testified that the baby looked about the size of her own newborn daughter who weighted 6 pound, 6 ounces. Reportedly, upon seeing the baby, the abortion doctor joked, “This baby is big enough to walk around with me or walk to the bus-stop.” The doctor then “just slit the (baby’s) neck” and dumped him into a plastic shoebox for disposal. The workers were so startled that one took pictures of the baby. When asked why she took a photograph of the baby, the worker responded, “Because it was big, and it was wrong, and we knew it.” A Philadelphia Grand Jury, in 2008, indicted the doctor, Kermit Gosnell, for among other things, killing this infant and several other babies who survived late-term abortions. 3
The Born Alive Infants Protection Act (BAIPA) was enacted in 2002 to address cases like these. Although the federal government did investigate and charge Dr. Gosnell with drug-related crimes, the government remained deafeningly silent on the issue of infanticide in both the Philadelphia and Florida cases. In fact, it is unclear whether the federal government has ever used the BAIPA to investigate any health care worker, doctor, or facility on accusations of infanticide.
Apathy does not fully explain the government’s inactivity. Rather, the law’s defectiveness may bear some responsibility. The BAIPA should be revised or amended to give prosecutors the tools to stop infanticide, and similar legislation must be enacted at the state level. Without these much-needed legislative changes, infanticide will continue, eroding the inalienable right to life for everyone.
Legally Protecting the Unborn
The legal right to an abortion has existed since the Roe v. Wade 4 decision in 1973 (not a constitutional right, as it is not in the Constitution). The Roe v. Bolton 5 case,handed down the same day,in effect, extended the “right” to abortion to all nine months of pregnancy. States have attempted to restrict abortion, and many of those restrictions, including waiting periods, mandatory counseling, and parental consent, have been upheld by the Supreme Court.
According to the Guttmacher Institute, the research arm of Planned Parenthood, 88 percent of abortions occur during the first trimester.6 The most common procedure is known as “Vacuum Aspiration” in which the baby is sucked out of the uterus. Second and third trimester abortions account for about 12 percent of abortions,7 and are performed primarily on babies who are found to have physical deformities.8 Ninety-two percent of Downs Syndrome babies are aborted,9 some as late as the third trimester.10
Until 2003, there were two legal abortion procedures performed during the second and third trimester: Dilation and Extraction (D & E) and Early Induction Abortions. D & E, also known as “Partial Birth Abortion,” involved inducing delivery and killing the baby in the birth canal. Early Induction Abortion requires the baby to be killed by an injection of Digoxin into the baby’s heart.11 Labor is induced. The child is then extracted from the uterus, usually dead, but not always.
A legal tug-of-war ensued from the mid-1990s until 2003 over when a woman’s so-called right to abortion ends and the rights of the child begin. Twice, Congress enacted bills that banned partial birth abortion, and twice President Clinton vetoed them. States began prohibiting partial birth abortions.12 In 2000, the U.S. Supreme Court struck down a Nebraska state statute banning partial birth abortion. According to this case, a child’s right to live did not exist at birth, but rather, only existed if the mother wanted the child to live. The child’s location in the womb, in the birth canal, or outside the woman’s body became inconsequential. Infanticide, under the guise of abortion rights, had been legalized by the Supreme Court.
Congress finally addressed both types of abortions with passage of the Born Alive Infants Protection Act of 2002 (BAIPA) and the Partial Birth Abortion Ban of 2003. Unlike the BAIPA, the Partial Birth Abortion Ban imposed criminal penalties for violators. It was challenged as unconstitutional, and upheld by the Supreme Court in 2007 in the case Gonzales v. Carhart.13 Under current law, a doctor exposes himself to criminal penalties if he performs partial birth abortions. Additionally, thirty-one states have enacted partial birth abortion bans. Eighteen laws are in effect.14
Sponsors of the BAIPA intended for the law to protect children born alive after an Early Induction Termination Abortion. Hearings were conducted in both houses of Congress with nurses and others testifying extensively about how children who had survived abortion had been left to die in hospitals across the country.15 Congress finally enacted the bill, and President Bush signed it in 2002.
Curiously, there was great fanfare at the bill’s signing,16 but from the moment it was signed by the President, the law seemed to drift into oblivion. The White House barely spoke about it again; neither did anyone in the U.S. House or the Senate. One author compared the law’s fate to the fate of the babies it was supposed to protect: “…BAIPA was birthed, laid aside and allowed to die by those who should have cared for it most.”17
The medical elite did not remain silent, however. Defiantly, they declared that the profession had no interest in complying with the BAIPA. In 2002, the American Academy of Pediatrics’ Neonatal Resuscitation Program Steering Committee stated that the BAIPA would have no effect on the treatment of “those newly born infants who are deemed appropriate to not resuscitate or to have medical support withdrawn … [and] should be treated with dignity and respect, and provided with comfort care measures.” Which children were “deemed appropriate” for resuscitation was to be determined by the family and the doctor.18 Nothing had changed.
HHS’s Knock-Out Blow
The language of the BAIPA was weak from the start. Unlike the Partial Birth Abortion bill, it contained no findings of fact. It provided no criminal penalties for violators.
From the date it was enacted, the law’s effectiveness was on life-support, and the U.S. Department of Health and Human Services (HHS) handily pulled the plug. In 2005, three years after the law’s enactment, HHS finally exercised its duty to promulgate regulations. The department chose to enforce it solely through notification and education measures in two federal programs: The Emergency Medical Treatment and Active Labor Act (EMTALA) and the Child Abuse Prevention and Treatment Act (CAPTA). Respectively, both laws fund federal programs to hospitals to ensure that individuals are treated in emergency rooms, and that children who are abused receive proper care in hospitals. Under the promulgated directives, all infants who were “born alive” and “medically neglected” had to be reported to the proper authorities.19 The regulations imposed fines on hospitals and doctors who violated either statute.
The decision to enforce the BAIPA through these statutes spelled the death knell of the law for several reasons: First, both CAPTA and EMTALA rely on reporting from a third party to the government in order to trigger an investigation. There is no independent oversight. Unlike other scenarios where there is a party who wants the patient to live, in the abortion scenario, no one, including the baby’s mother, wants the unborn child to live. Consequently, no one will report the lack of care given to the infant surviving an abortion, and no investigations and subsequent punishment will occur.
Secondly, the requirements to treat are triggered when an infant is “suffering from an emergency medical condition.” As pointed out by one doctor in a 2005 article published in Pediatrics, “emergency medical condition” is not defined.20 A child surviving an abortion may not be an “emergency medical condition” because no one involved with the procedure wants the child to live.
Thirdly, neither CAPTA nor EMTALA carry criminal penalties for violations, simply fines. A hospital or doctor committing infanticide would simply be judged under these laws as negligent, not criminal, a far lighter burden.
Finally, by targeting enforcement facilities that are receiving federal funds through CAPTA and EMTALA, the government is missing its mark on the primary abortion providers. While some abortions occur in hospitals and emergency facilities receiving these funds, many, if not most, abortions occur in private facilities, which do not receive these federal funds.
The Medical Elite’s Disdain
In his book entitled, Unsanctifying Human Life, the medical ethicist, Peter Singer, punctuated the prevailing view in modern medical ethics: “Normal adults and children, but not fetuses and infants, are persons.”21 Non-persons, which in his view include fetuses and infants, especially infants marked for death by abortion, can be killed with impunity. Peter Singer’s utilitarian view of life has replaced the sanctity of life ethic that has existed throughout history in the medical profession. Most recently, two of his Australian contemporaries published an article in the Journal of Medical Ethics arguing that babies who survive abortion are “non-persons” and that “killing a newborn could be ethically permissible in all circumstances where abortion would be.”22
Understanding this mindset, it comes as no surprise that the medical elite continues to dance on the grave of the BAIPA. In 2009, in the American Academy of Pediatrics publication, Pediatrics, 28 percent of neonatologists surveyed said that their own practice “would not change if the BAIPA were enforced.” Six neonatologists threatened to stop practicing medicine and four additional doctors said they would find ways to circumvent the BAIPA.23 Only six percent of the physicians surveyed believed the BAIPA should be enforced.24
Most telling in the study was a response among the physicians surveyed that the acceptable gestation limit for required resuscitation rose according to, among other factors, the physician’s views on abortion. One neonatologist complained that the BAIPA would force physicians to resuscitate more babies and “increase the cost of care. If they survive, there will be more children with severe disabilities. I wish they would spend the money for children who need care now.”25
Abortion Survivors
Opponents of the BAIPA are quick to underscore the law’s uselessness. They say that babies simply are not born alive after abortions, at least not enough to be of concern.26 An U.K. study published in 2007 reported otherwise. It found that one in 30 children survived an early induction abortion. In all these cases, the abortion was performed because of fetal abnormalities, including Downs Syndrome or heart defects. The median survival time was 80 minutes. Some lived a shorter period of time. Some lived as long as six hours after the abortion. These babies ranged from 17 to 33 weeks gestation.27 Many may have lived had their mothers wanted them.
The U.S. medical profession has confirmed these findings. In 2010, the Society of Family Planning issued a report entitled, “Induction of Fetal Demise Before Abortion.” In that article, the authors candidly admit, “in the literature describing induction termination, there have been multiple case reports of unintended live births.” Although accounting for only one percent of total abortions, early induction abortion is the only legal method of abortion for babies who have reached the latter part of the second trimester or the third trimester of gestation.28
Interestingly, North Carolina Women’s Hospital has an information sheet posted on the web that answers questions for women obtaining an abortion about the early induction method. One of the questions listed on the information sheet is “Will my Baby Be Born Alive?” The sheet states: “Many times babies are not born alive…. However, some babies do breathe for a short time after delivery. If your baby is born alive, he/she can be kept warm and given comfort until breathing stops. A nurse can do this if you and your family are not able.”29
Silence
Dietrich Bonhoeffer, one of the few German theologians who opposed Hitler, warned, “Silence in the face of evil is itself evil: God will not hold us guilt- less. Not to speak is to speak. Not to act is to act.”30
For too long, this nation has not spoken and has not acted on the issue of infanticide. Americans have remained far too complacent about the fate of children who survive abortions, convinced that the matter was adequately addressed in 2003. America’s most vulnerable citizens deserve more than mere symbolism. A nation that fails to protect the weak from the strong is no longer a free nation.
As atrocious as the baby-killings were in the Philadelphia and Florida cases mentioned at the beginning of this article, the issue of infanticide carries with it far greater implications than issues of life and death at its beginning. It challenges the strength of Americans’ national belief in the inherent dignity of all innocent life, including the lives of the handicapped and the aged.
Bonhoeffer was hung for speaking out against Hitler. At the very least, lawmakers should be willing to risk political fortune to protect the most fundamental right, the right to life. It is time to stop settling for politicians who make hollow promises and enact meaningless laws. The choice is clear.
The life of every American and their children may depend on the answer, not to mention the fundamental freedom of the greatest nation on earth.v
How to Fix the Born Alive Infants Protection Act
Because the BAIPA gives only lip-service to the atrocity of infanticide, states, including North Carolina, need to enact criminal statutes banning Partial Birth Abortion and require medical assistance to the babies who survive an abortion.
Both state and federal laws should contain the following:
• Findings of fact that the legal right to an abortion ends when the baby leaves the woman’s body. It does not extend beyond the womb. The state has a paramount interest in protecting all individuals, including infants who are handicapped or unwanted by their parents, especially once they are born.
• A requirement that all facilities performing abortions have available on site the staff and equipment to resuscitate and care for infants who survive an abortion.
• A trigger extinguishing parental rights to the child, if the mother refuses to authorize immediate life-sustaining medical treatment for the newborn, or expresses a desire not to assume responsibility for the child.
• A requirement that all deliveries of live newborns that accidentally occur as a result of an abortion, including those infants continuing to live and those who die, be reported to the appropriate jurisdiction.
• Criminal penalties for doctors who violate the statute.
Mary Summa, J.D., is an attorney in Charlotte, North Carolina, who served as Chief Legislative Assistant to U.S. Senator Jesse Helms during the 1980s. For a footnoted version of this article, please visit ncfamily.org
Mary Summa, J.D., is an attorney in Charlotte, North Carolina.
Copyright © 2012. North Carolina Family Policy Council. All rights reserved.
Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION – “Evil Silence: The Deficiencies in the Born Alive Infant Protection Act. Family NC. Spring 2012.
.1. “Abortionist Stripped of Medical License in Hialeah Baby Murder Case.” Catholic Online. 7 February 2009. <http://www. catholic,org/national/national_story.php?id=32031> last visited February 20, 2012.
2. Steven Ertelt. ”Pro-life Group Upset Abortion-Infanticide Case Dropped.” LifeNews.com. 21 March 2011. < http://www. lifenews.com/2011/03/21/pro-life-group-upset-abortion-infanticide-case-dropped/>last visited February 20, 2011.
3. In Re Court Investigation. Grand Jury XXIII, Miscellaneous No. 009901-2008. Court of Common Pleas. First Judicial District of Pennsylvania, Criminal Trial Division. January 14, 2011 http://www.phila.gov/districtattorney/PDFs/GrandJuryWom- ensMedical.pdf
4. 410 U.S. 113 (1973).
5. 410 U.S. 179 (1973).
6. “Facts on Induced Abortion in the United States”. Guttmacher Institute. August 2011.
7. “Facts on Induced Abortion in the United States.” Guttmacher Institute. August 2011. < http://www.guttmacher.org/pubs/fb_in- duced_abortion.pdf> last visited February 20, 2012
8. C. Mansfield, S.Hopfer, T. Marteau, “Termination Rates After Prenatal Diagnosis of Down syndrome, Spina Bifida, Anecephaly, and Turner and Klinefelter syndromes: A Systematic Literature Review.” Prenatal Diagnosis. 1999 September. 19(9): 808-812.
9. Susan Donaldson James. “Downs Syndrome Births are Down in U.S.” abcnews.com. 2 Nov. 2009. http://abcnews.go.com/ Health/w_ParentingResource/down-syndrome-births-drop-us- women-abort/story?id=8960803 last visited February 20, 2012.
10. M. Dommergues, A. Benachi. et al. “The Reasons for Termination of Pregnancy in the Third Timester.” J. Obstet. Gynaecol. 1999 April. 106(4): 297-303.
11. American Pregnancy Association. “Types of Abortion Procedures.” http://www.americanpregnancy.org/unplannedpregnancy/ abortionprocedures.html last visited February 24, 2012.
12. Stenberg v. Carhart, 530 U.S. 914 (2000) and Planned Parenthood v. Farmer, 220 F.3d 127 (3d Cir. 2000).
13. 550 U.S. 127 (2007).
14. “Bans on ‘Partial Birth’ Abortions.” Guttmacher Institute. 1 February 2012. http://www.guttmacher.org/statecenter/spibs/ spib_BPBA.pdf last visited February 24, 2012.
15. Born Alive Infant Protection Act of 2000, Hearing Before the Subcommittee on the Constitution, Committee on the Judiciary, U.S. House of Representatives, 106th Congress, Second Session on H.R. 4292. July 20, 2000. Born Alive Infants Protection Act of 2001, U.S. House of Representatives, 107th Congress, 1st Session
16. “President Bush Signs Born-Alive Infants Protection Act,” National Right to Life Committee, Aug. 5, 2002 http://www. nrlc.org/Federal/Born_Alive_Infants/BAIAPsigned.html>
17. Roger Tyron, “Children of a Lesser Law: The Failure of the Born Alive Infants Protection Act and a Plan for Its Redemption”.19 Regent Law Review 1. 11. http://oldsite.alliancedefense- fund.org/userdocs/2006_PEWwinner.pdf last visited February 24, 2012.
18. “Born Alive Infant Protection Act of 2001 P.L. 107-207” American Academy of Pediatrics. January 10, 2003. < http:// www2.aap.org/nrp/instructors/instres/instres_born-alive.html> last visited February 20, 2012.
19. Craig A. Conway, “What Will Become of the Born Alive Infants Protect Act?” Health Law Perspectives: Health Law and Policy Institute, University of Houston Law Center. ( June 2009). http://www.law.uh.edu/healthlaw/perspectives/2009/(CC)%20 BAIPA.pdf. Last visited February 24, 2012.
20. SA Sayeed. “Baby Doe Redux? The Department of Health and Human Services and the Born-Alive Infants Protect Act of 2002: A Cautionary Note on Normative Neonatal Practice.” Pediatrics. 2005 Oct. 116(4) 1019-1021.
21. Peter Singer. Unsanctifying Human Life. Massachusetts: Black- well Publishers. 2002. 239.
22. Alberto Guiblini, Francesca Minerva. “”After-Birth: Why Should the Baby Live?” Journal of Medical Ethics. 23 February 2012.
23. id at 1091.
24. id. at 1090.
25. id., at 1091.
26. Michele Kers Frishman. “Wisconsin Act 110: When An Infant Survives An Abortion” 20 Wis. Women’s L.J. 101 (2005)
27. M.P. Wyldes, A.M. Tonks. “Termination of Pregnancy for Fetal Anomaly: A Population Based Study 1995-2004.” BJOG. 12 March 2007. 114(5). 639-642. 640.
28. “Induction of Fetal Demise Before Abortion.” Society of Family Planning. ( January 2010) at 2. http://www.societyfp. org/_documents/resources/InductionofFetalDemise.pdf last visited February 24, 2012.
29. North Carolina’s Women’s Hospital “Pregnancy Termination Using Induction of Labor”
http://mombaby.org/UserFiles/File/WomensHealthEducation/ English/Pregnancy%20Termination%20Using%20Induction.pdf
30. Eric Metaxas, Bonhoeffer: Pastor, Martyr, Prophet, Spy. Thomas Nelson: Nashville. 2010. Backcover.
A Threat to Liberty: Same-Sex “Marriage,” Domestic Partnerships, and Civil Unions
In 09 Mary Summa, JD on 2012/05/03 at 9:11 AM
A Threat to Liberty: Same–Sex “Marriage,” Domestic Partnerships, and Civil Unions
Family North Carolina…written by: Mary Summa, J.D.
In Sweden in 2004, a court convicted a pastor of a hate crime and jailed him for one month for preaching against homosexuality.1 In Canada in 2007, fearful of losing custody of their children for refusing to put them in government-run schools that taught homosexuality as an ‘alternative’ lifestyle contrary to their religious beliefs, Mennonites fled Quebec for Ontario.2
These accounts should surprise no one. The homosexual rights army has been on the march for decades. The last 10 years have witnessed the fiercest battles for legalization of civil unions (or its equivalent), domestic partnerships, and same-sex “marriage.”3
What is surprising is America’s response to the struggle. Many people, including some Christians, have adopted a laissez-faire attitude when it comes to same-sex “marriage.” They have been indoctrinated by the homosexual lobby to believe that the legalization of civil unions, domestic partnerships, and same-sex “marriage” has nothing to do with them. Sadly, it does.
Make no mistake, the legalization of same-sex “marriage” would fundamentally transform the social and legal understanding of marriage. It would affect the rights and freedoms Americans hold dear and spell the death-knell of liberty. In fact, it already has.
The Steep Climb Toward
Same–Sex “Marriage”
The legalization of same-sex “marriage,” domestic partnerships, and civil unions does not represent the genesis of the homosexual rights movement, but rather its pinnacle. Beverly LaHaye, the founder of Concerned Women for America, astutely wrote: “The homosexual ideology implies the intent to rearrange our perceptions, lifestyle and legal system in the strict sense of the term. This change is revolutionary. It requires, if it is to be effectively implemented, the careful and gradual application and transfer of power. The homosexual movement is a … hard-nosed political movement bent on changing our society.”4
The goal of altering society has not come easily for the homosexual rights movement. While the first homosexual rights group was founded in 1924, 5 the movement stalled and sputtered through most of the 20th Century. Things changed drastically in 1973, when the American Psychiatric Association did an about-face and removed homosexuality from its official list of mental disorders. Buttressed with their new medical ally and aligning itself to the civil rights bandwagon, the homosexual rights movement gained traction and then momentum. Focusing on anti-discrimination laws, the movement began building an arsenal of local, county, and state laws prohibiting discrimination on the basis of sexual orientation. Simultaneously, the movement began successfully targeting anti-sodomy statutes and “hate crimes” based on sexual orientation.
In the 1980s, homosexual advocacy groups began demanding legalization of their status as couples. A former ally in the fight to preserve the traditional family, numerous courts became the family’s enemy. The last 25 years have witnessed a struggle between the courts (and some legislatures) who have sought to destroy marriage, and the public who has fought to preserve it.
To date, 37 states have enacted Defense of Marriage Statutes (DOMAs) and 30 states have passed amendments to preserve the definition of marriage in their State Constitutions.6 Six states and the District of Columbia have legalized same-sex “mar- riage,” either by judicial mandate or by legislature initiation.7 Unlike every other southern state, North Carolina lacks a Marriage Protection Amendment.
Some courts, although unwilling to overturn traditional marriage laws, began mandating that state legislatures enact laws to allow and recognize civil unions. The homosexual rights lobby saw civil unions, simply, as a legal waiting room for the subsequent coronation of the marriage title. In 1999, responding to a court mandate, Vermont became the first state to legalize civil unions.8 Praising the decision, Lambda Marriage Project Director Evan Wolfson commented, “Americans will see that when lesbians and gay men are given access to most of the rights and obligations of civil marriage, the sky will not fall and the institution of marriage will be even stronger.”9 Seven years later, the New Jersey Supreme Court mimicked Vermont’s high court and mandated the legislature to enact civil unions legislation.10 In 2005, Connecticut became the first state to legalize civil unions without a court mandate.11
Judges and legislators who thought the legalization of civil unions would quell the demand for same-sex “marriage” have been proven dead wrong. As Archbishop Charles Chaput, Archbishop of Denver, noted in a recently published article, “…in every state where civil unions have become law, the political pressure for ‘gay marriage’ has not declined; it has increased.”12
To date, seven states—Connecticut, Vermont, New Hampshire, New Jersey, Hawaii, Illinois, and Delaware—have enacted civil unions laws. The laws in Hawaii and Delaware will go into effect in January 2012. Seven states—California, Oregon, Nevada, Washington, Hawaii, Maine, and Wisconsin—and the District of Columbia legally recognize domestic partnerships.13
Three of those jurisdictions—Connecticut, Vermont, and New Hampshire—have subsequently replaced civil unions with legalized same-sex “mar- riage.”The District of Columbia has legalized same-sex “marriage“ and retained its domestic partnership law.14 If the trend in the U.S. continues, most, if not all, of these states with legalized civil unions or domestic partnerships will eventually legalize same- sex “marriage.”
Undermining Marriage
Marriage is God-given, not a creation of government, and has, in fact, existed outside of government.15 In every known human society, marriage has served as the foundational institution for society, and its purpose to regulate heterosexual activity and provide stability for the rearing of children has remained constant.16 Courts have recognized both of these facts.
Attempting to accommodate same-sex relations within the definition of “marriage,” some recent court decisions have ignored its source and minimized its foundational role in society. According to at least one court, God did not institute marriage. The State did. In Baehr v. Lewin, the Hawaii court described marriage as “a state-conferred legal status, the existence of which gives rise to rights and benefits reserved exclusively to that particular relationship.”17 In Goodridge v. Department of Public Health, a court decision that forced Massachusetts to legalize same-sex “marriage,” the court ignored the long-standing procreational aspect of marriage and described it in terms of “exclusivity, mutual support and commitment to one another.”18 The words “commitment” and “love,” as pointed out by William Duncan, Director of the Marriage Law Foundation, “are terminable in a way that ‘obliga- tion’ is not because both are subjective and can, to some degree, be chosen or unchosen.”19
Who Cares?
Anyone who cherishes freedom should care about marriage. Traditionally, state legislatures and courts have only slightly regulated the marital institution or the decisions made regarding children. The state has simply provided a “legal shell that gave the institution status and legal effect.”20
In contrast, same-sex “marriage,” domestic partnerships, civil unions, and the rights ensuing from those institutions are totally created by government. Their lifeblood depends on the winds of power. As courts and legislatures empower these institutions with rights and privileges identical to marriage, the lines of distinction blur, and government begins to tread on the rights and privileges of traditional marriage.
Undermining Parental Rights
As the definition and purpose of “marriage” has been altered, so, too, have been the rights of parents. In 2007, William Duncan argued that if marriage is no longer about “procreation” but simply a “mutual commitment,” “it is at least possible that natural parents will have to be treated the same as individuals with no natural tie to a child.”21 In fact, by 2007, the courts in several states had already re-crafted the definition of “parenthood” by legalizing “de facto” parenting, giving individuals who were not biologically linked to a child the status of “parent” with at least partial parenthood rights and privileges.
North Carolina joined the “de facto” parent- hood bandwagon in 2008, when the State Court of Appeals in Mason v. Dwinnell ruled that a non- biological ex-partner was given rights to custody and visitation to a child over the objection of the biological parent.22 This de facto parenting doctrine recently was used by the North Carolina Supreme Court in Boseman v. Jarrell to justify the awarding of custody and visitation to a non-biological parent over the objection of an ex-same-sex partner, who was the biological mother.23 Biological parents can no longer be assured that their rights, at least the rights to custody and visitation, are secure.
The court’s creation of marriage-like institutions has adversely affected other parental rights in traditional marriage. The fundamental right of parents to provide for their child’s educational, moral, and religious upbringing—rights long protected by the courts—have been victimized as well. After Massachusetts legalized same-sex “marriage” in 2003, the State Board of Education altered its curriculum to accommodate same-sex couples. In 2008, the kindergarten “Diversity Book Bag” included a picture book, Who’s In a Family?, which depicted a variety of families, including two moms or two dads. Second graders were required to listen to the reading of King and King, which describes the story of a prince falling in love with another prince. Parents objected to the content of these pro-homo-sexual materials and sued because they had never been given the opportunity to remove their children from the classroom while the materials were being taught. The lower court dismissed the lawsuit, and on appeal, the federal circuit court affirmed that dismissal. Brushing aside a parent’s rights to provide for the spiritual and moral well-being of their own children, First Circuit Judge Sandra Lynch admitted in the opinion that the book “affirmatively endorsed homosexuality and gay marriage,” and boldly concluded, “It is a fair inference that the reading of King and King was precisely intended to influence the listening children toward tolerance of gay marriage. That was the point of why that book was chosen and used.”24
Threatening Religious Freedom
For the past 20 years, churches and religiously- affiliated institutions worldwide have felt the sting of the homosexual rights movement. While not yet directly barring biblical teaching against homosexuality, many institutions have found themselves staring down the barrel of a lawsuit because they have refused to accommodate the homosexual lifestyle. In 1987, 13 years before D.C. legalized same-sex “marriage,” in Georgetown University v. Gay Rights Coalition of Georgetown Law Center, the D.C. Courts found Georgetown University, a Catholic institution, in violation of a public accommodations law for failing to allow homosexual groups to meet on campus. In the opinion of the court, “the goal of eradicating sexual orientation discrimination represents a more important government interest than protecting religious liberty.”25
The legalization of civil unions, while not called “marriage,” intensified the wrath against those who courageously spoke out against the homosexual life- style. In 2007, civil unions in California were legal but same-sex “marriages” were not. Four San Diego firefighters objected to participating in the San Diego Gay Pride Parade. Their superiors forced them to do so. (Subsequently, the firefighters won a sexual harassment suit in 2010 for injury occurring from working at the event.)26 In 2007, one year after New Jersey legalized civil unions, the State of New Jersey removed a greenway tax exemption from a New Jersey Methodist camp, because that camp refused to host a same-sex union in its marriage pavilion.27
The legalization of homosexual “marriage” has intensified the government’s scrutiny of organizations and individuals who have refused to bow to the homosexual agenda. In 2006, three years after the courts forced the Massachusetts legislature to legalize same-sex “marriage,” Catholic Charities of Massachusetts was faced with a dilemma: place children with same-sex couples or lose its license. Unable to obtain a waiver of the anti-discrimination laws regarding sexual orientation, and refusing to violate religious convictions, Catholic Charities closed its doors to the adoption business after 100 years of service.28
In 2008, the same year the judiciary redefined marriage,29 a California court refused to allow a physician to claim a religious exemption when he was asked to perform In Vitro Fertilization treatments on a lesbian woman. The court, in North Coast Women’s Care Medical Group v. San Diego County Superior Court, found that the state’s compelling interest in extinguishing discrimination on the basis of sexual orientation superseded a religious belief, even if that burden on freedom of religion was “substantial.”30 The legalization of same-sex “marriage” will elicit numerous cases of this nature.
The pro-homosexual attitude in government has pervaded government entities even in jurisdictions without civil unions or same-sex “marriage.” In many cases, local human rights commissions have wielded the hammer.
• In 2006, the Arlington, Virginia Human Rights Commission ordered a professed Christian, who operated a video duplicator business, to do a job for a lesbian activist. He had refused because he did not want to help promote homosexuality.31
• In 2008, a Christian couple in Albequerque, New Mexico was tried before the State Human Rights Commission after declining to photograph a same-sex ceremony. Reportedly, the couple had to pay the commission a fine of $6,600.32
These few examples provide a glimpse of how far the homosexual agenda has advanced in this country. Looking at Canada, a country that legalized same-sex “marriage” in 2005, one can see what persecution might lie ahead.
• In 2005, the Alberta Roman Catholic Bishop Fred Henry, faced two complaints filed against him because of his pastoral letter defending the traditional definition of marriage. In a 2008 article, Bishop Henry is quoted as saying, “The social climate right now is that we’re into a new form of censorship and thought control, and the commissions are being used as thought police.”33
• In 2007, a Catholic city councilman from British Columbia was fined $1,000 and required to apologize for saying that homosexuality is “not normal or natural.”34
• In 2009, Ontario’s Ministry of Education mandated a policy that required every school board in Ontario, Catholic and public, to
implement a new ‘equity and inclusiveness’ policy recognizing sexual orientation” as a ground protected from discrimination by September 2010.35
These situations make one wonder how anyone could ever question how the legalization of same-sex “marriage” will affect them.
For Family and Freedom
Thomas Jefferson wrote in the Declaration of Independence, 235 years ago, that man is endowed with the inalienable right to liberty. That right includes religious freedom and the right of parents to instill those religious beliefs in their children. Our forefathers understood that those rights serve as the foundation of freedom and a government must protect them.
Totalitarianism, on the other hand, is a system of government that is dictatorial and requires complete subservience of its citizenry. Strong families and the Church are its two primary enemies because both diminish the power of the State to control the loyalty of its citizenry. One demands loyalty to one’s spouse and children. The latter demands loyalty to God.
As the battle over homosexual “marriage” continues to be waged in state legislatures and courtrooms nationwide, marriage defenders should not fool themselves into thinking that it does not affect all individuals and marriage at large. Amidst charges of “homophobia,” “unfairness,” and “bigotry,” the fight to preserve traditional marriage—the foundation of freedom—must continue. North Carolinians must act now to stem the tide by demanding a state constitutional amendment that will protect the definition of marriage as being between a man and a woman with that relationship being the only valid and legally recognized domestic union in the state. If pro-family citizens sit back and do nothing, this religious persecution and all-out war against the family will intensify here in North Carolina. As a result, parental and religious freedom will be lost.v
Mary Summa, J.D., is an attorney in Charlotte, North Carolina, who served as Chief Legislative Assistant to U.S. Senator Jesse Helms during the 1980s. For a footnoted version of this article, please visit ncfamily.org.
Family North Carolina
ENDNOTES:
1) Office of the Prosecutor General v. AG, Case No. 1050-05, November 25, 2005 http://oldsite.alliancedefensefund.org/ userdocs/GreenSupremeCourtRuling.pdf.
The conviction was later overturned. See “Swedish Anti-Gay Pastor Acquitted,” BBC News.com, November 29, 2005. http:// news.bbc.co.uk/2/hi/europe/4477502.stm. Last visited 21 May 2011.
2) Mennonites threaten to abandon Quebec”The Vancouver Sun, 16 August 2007 < http://www.canada.com/vancouversun/ news/story.html?id=9783f327-d369-401f-9a61-eaaa68f0db14> Last visited 20 May 2011.
3) Civil Unions -Belgium in 1998, the province of Quebec in 1999 and Sweden in 2005. and all three legalized same sex marriage—Belgium in 2003, Canada in 2005 (by 2005 with the passage of the Civil Marriage Act all but 5 Canadian provinces had legalized same sex marriage by court decisions. M v. H 2 SCR 3 (1999), a Canada Supreme Court case had mandated spousal benefits to same sex couples since 1999 and Sweden in 2009.
4) Beverly LaHaye, The Homosexual Agenda, Concerned Women for America. 1991.
5) Henry Gerber established the first homosexual rights group in 1924 but it folded a year later with his arrest. See http:// http://www.glhalloffame.org/index.pl?item=18&todo=view_item. Last visited 22 May 2011.
6) “Same Sex Marriage, civil Unions, and Domestic Partnerships,” National Conference of State Legislatures, February 2011. http://www.ncsl.org/default.aspx?tabid=16430 last visited May 20, 2011.
Hawaii’s amendment does not specifically define marriage but specifies that only the legislature “shall have the power to reserve marriage to opposite sex couples.”
7) “Same Sex Marriage, civil Unions, and Domestic Partnerships,” National Conference of State Legislatures, February 2011. http://www.ncsl.org/default.aspx?tabid=16430 Last visited May 20, 2011.
8) Baker v. Vermont, 744 A.2d 864 ( Vt. 1999).
9) “Vermont Civil Unions Law to Take Effect, Putting Fairness in Full Swing,” http://www.Lambdalegal.org., June 30, 2000. http:// http://www.lambdalegal.org/news/pr/ny_20000630_vt-civil-unions- law-to-take-effect.html. Last visited 22 May 2011.
10) Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (N.J. 2006)
11) “Same Sex Marriage, Civil Unions and Domestic Partnerships, National Conference of State Legislatures, February 2011. http://www.ncsl.org/default.aspx?tabid=16430 Last visited 20 May 2011.
12) “Voice Your Support for Marriage and Thank these Lawmakers”, Denver Catholic Register, April 6, 2011.
13) “Same Sex Marriage, civil Unions, and Domestic Partnerships,” National Conference of State Legislatures, February 2011. . http://www.ncsl.org/default.aspx?tabid=16430. Last visited 20 May 2011.
14) “Same Sex Marriage, civil Unions, and Domestic Partnerships,” National Conference of State Legislatures, February 2011. . http://www.ncsl.org/default.aspx?tabid=16430. Last visited 20 May 2011.
15) William Duncan, “Constitutions and Marriage, 6 Whittier Journal of Child and Family Advocacy 331 (2007).
16) See Justice Robert J. Cordy’s dissenting opinion in Goodridge v. Department of Public Health, 440 Mass 309, 798 N.E.2d 941 (Mass 2003).
17) Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).
18) 440 Mass. 309, 798 N.E.2d 941 (Mass 2003) at 440 Mass 337.
19) William Duncan, “Portrait of an Institution”, 50 Howard Law Review 95 at 105 (2oo6).
20) William Duncan, “Portrait of an Institution”, 50 Howard Law Review 95 (2006).
21) William Duncan, Constitutions and Marriage, 6 Whittier Journal of Child and Family Advocacy 331 (2007).
22) Mason v. Dwinnell, (660 S.E.2d 58 (N.C. App. 2008). 23) Boseman v. Jarrell, 695 S.E.2d 753 (2010).
24) Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008) cert. denied 129 S. Ct. 56 (2008).
25) Georgetown University v. Gay Rights Coalition of Georgetown Law Center, 536 A.2d 1 (D.C. App. 1987).
26) See “San Diego Firefighters Prevail in Gay Pride Parade Lawsuit”, The United Families International Blog, October 19, 2010. http://unitedfamiliesinternational.wordpress. com/2010/10/19/san-diego-firefighters-prevail-in-gay-pride- parade-lawsuit. Last visited 8 May 2011.
27) New Jersey Attacks Religious Freedom of Methodist Campground”, Catholic News Agency, September 27, 2007, http://www.catholicnewsagency.com/news/new_jersey_at- tacks_religious_freedom_of_methodist_campground Last visited 20 May 2011.
28) Colleen T. Rutledge, “Caught in the Crossfire: How Catholic Charities of Boston Was Victim to the Clash Between Gay Rights and Religious Freedom,” 15 Duke Journal of Gender Law and Policy 297 (2008). http://www.google.com/search?hl=en&q= 15+Duke+Law+Journal+of+Gender+Law+and+Policy+297+%28 2008%29&btnG=Search Last visited 22 May 2011.
See also Maggie Gallagher, “Banned in Boston, The Coming Conflict Between Same Sex Marriage and Religious Liberty”, Weekly Standard, May 25, 2006.
http://www.weeklystandard.com/Content/Public/ Articles/000/000/012/191kgwgh.asp. Last visited 22 May 2011.
29) In re Marriages, 76 Cal. Rptr. 3d 683, 183 P.3d 384 (Cal. 2008).
30) North Coast Women’s Care Medical Group v. San Diego County Superior Court, 189 P3d 959, 968 (Cal. 2008).
31) Businessman Ordered to Duplicate Lesbian’s Vid- eos, WorldNetDaily.com, April 28, 2006 http://www.wnd. com/?pageId=35927 Last visited 20 May 2011.
32) Jeff Johnson, “New Mexico Commission Orders $6,000 Fine for Christian Beliefs,” onenewsnow.com, 11 April 2008.
http://www.onenewsnow.com/Legal/Default.aspx?id=75547 Last visited 20 May 2011.
33) Pete Vere, “Canada’s Human Rights Beef With Catholics,” Zenit.com, 5 February 2008 http://www.zenit.org/article- 21689?l=english Last visited 20 May 2011.
34) “Canadian City Councillor Fined $1000 for Saying Homosexuality ‘not Normal or Natural’,”LifeSiteNews.com, January 19, 2007. http://www.lifesitenews.com/news/archive/ldn/2007/ jan/07011902 Last visited 20 May 2011.
Also see “The Impact of Same-Sex Marriage on Religious Freedom”,Christian Examiner online, December 2008.
http://www.christianexaminer.com/Articles/Articles%20Dec08/ Art_Dec08_11.htmlYet
35) “Policy/Program Memorandum No. 119,” Ontario Ministry of Education, June 24, 2009, http://www.edu.gov.on.ca/extra/ eng/ppm/119.html last visited on 8 May 2011.
See also “Anti-Christian Persecution & Oppression in Canada: The High Cost of Legalizing Same-Sex Marriage (SSM)” Campaignlifecoaltion.com,. http://campaignlifecoalition.com/ shared/media/editor/file/PersecutionOfChristians(1).pdf Last visited 8 May 2011.
Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.
Informed Consent: A Woman’s Right to Equal Treatment in Medicine
In 09 Mary Summa, JD on 2012/04/20 at 9:11 AM
By Mary Summa, J.D.
It is not just a clump of cells. … We wish we would have had to pay for an ultrasound and been able to view it. … We wish we would have even had that opportunity, to be told the truth,” one woman told a reporter from the Tampa Tribune. As part of Operation Outcry, on June 10, 2010, two dozen women, who regretted their own abortions, traveled to Tampa, Florida to urge Governor Crist to sign a newly-enacted Florida Right to Know bill.1
“The doctor never conferred with me. … I wasn’t given any information on what they were going to do or how. I was just taken in and taken care of, as they put it. I was never given the choice of whether I would want to allow adoption or anything,” Linda E. wrote about her own abortion at http://www.pregnant- pause.org, a website devoted, in part, to allowing women to tell their own stories about abortion.2
Pro-life testimonials and newspaper interviews provide a narrow glimpse into the deep, heart-wrenching pain and regret women suffer after an abortion—and how they were told very little before
their baby was ripped from their wombs. Our culture is saturated with organizations and politicians demanding rights for women. Yet, these same voices remain deafeningly silent when it comes to a woman’s right to know the risks and consequences of an abortion. Following a Supreme Court decision upholding the constitutionality of real informed consent laws for abortion in 1992, a growing number of state legislatures have responded to these women’s cries and have enacted laws requiring detailed counseling and/or a reflection period before an abortion.3 Many state’s legislatures, including North Carolina, have ignored their pain, while still waiving the banner of women’s rights and freedom.
Un–Informed Consent
Often, pro-lifers, in their desire to end the slaughter of millions of unborn children, assume that women made an informed choice to allow an abortionist to kill their child, and they should now be left to live with the harrowing consequences of that decision. Yet, in truth, most of these women were never given that chance.
A 2004 study found that 84 percent of women seeking an abortion said they did not receive adequate counseling; 79 percent were not told about available alternatives and 67 percent said they received no counseling at all. Sixty-four percent felt pressured into having an abortion.4 Another study found that 81 percent of women surveyed felt victimized by the abortion process.5
The Consequences
The physical and emotional consequences of having an abortion have devastated women. One study found that 65 percent of women studied experienced multiple symptoms of post-traumatic stress disorder (PTSD), which they attributed to their abortions. A little over 14 percent reported all the symptoms necessary for a diagnosis of PTSD. Other studies have linked abortion to increased risk of anxiety, substance abuse, sleep disorders, suicidal behavior, and depression.6
The risk of physical harm and the long-term effects of abortions have been documented also. One study revealed that early complications from abortion can include hemorrhaging, infection, perforation of the uterus, cervical lacerations, and thromboembolic complications including pulmonary infarction and deep thrombosis of the legs.7 Other studies show that induced abortion may contribute to ectopic pregnancies,8 miscarriages9 and breast cancer.10 In his book, Aborted Women – Silent No More, David Reardon, Ph.D., concludes that a minimum of 10 percent of women suffer physical complications from abortion.11
As the Supreme Court has stated, abortion is “inherently different from other medical procedures, because no other procedure involves the purposeful termination of potential life,”12 which is nothing less than a life at its genesis. It is a procedure that, in most cases, does nothing to enhance the life or wellness of the patient, but can cause tremendous physical and psychological damage, even when “successful.” Considering these stakes, women need to be protected and informed about exactly what is entailed in the decision to go through with having an abortion.
The Law Has Failed
In a country that prides itself on individual liberty and autonomy, it is unthinkable that women are being denied the right to real informed consent. After all, every state in the country has medical informed consent statutes designed to insure that patients are adequately informed and consent to all medical procedures prior to a procedure being performed.
Perhaps adequate for other procedures, these laws have failed to protect women seeking abortion. Some scholars believe the problem lies in fundamentally flawed informed consent laws and the pecuniary interest of the person entrusted to provide the information and secure the consent— the doctor.13
Defining Consent
Consent is a common law defense to the legal civil claims and criminal charges of assault and battery. “Informed consent” requires enough informa- tion to be able to weigh the pros and cons of a decision before making it.
Consent in medicine is a right to understand the benefits and risks of a medical procedure and to consent to it before it is performed. While generally recognized in common law, the principle of informed consent was first expressed in American courts by Justice Cardozo, when he sat on the New York Court of Appeals. In Schloendorff v. Society of New York Hospital 14, the justice stated, “Every human being of adult years and sound mind has the right to decide what shall be done with his own body.” Subsequent cases imposed a duty on physicians to provide sufficient information to a patient to afford the patient the right to make an informed decision.15
Medical Knowledge
Traditionally, reflecting a paternalistic nature of the doctor/patient relationship in medicine, state laws have given the physician wide latitude in deciding what to tell the patient. As long as the physician provides information that meets “community standards,” the information given meets the required legal threshold and protects the doctor from malpractice. This type of informed consent law is a “physician-centered” standard.
A growing respect for patient autonomy prompted some state legislatures to abandon physician-centered consent. First recognized by the D.C. Court in 1972, some states and the District of Columbia have replaced the physician-centered standard with a “reasonable patient” standard. To meet this threshold, the doctor should adequately provide information that a “reasonable patient” would want to consider, including the risks of the procedure
and the possible long-term effects to the patient’s health. As the Court stated, “It is the prerogative of the patient, not the physician to determine for himself the direction in which his interests seem to lie.”16 The information given must be material to the patient’s decision and the doctor must be confident that the patient understands these risks. The discussion should include: treatment and non-treatment options, and the benefits and risks of each; short-term risks during the procedure; long-term effects of all the treatment and non-treatment options; and the available public and private insurance coverage for the procedure.17 With either standard, however, there is a therapeutic privilege which allows the physician to withhold information when the physician believes the “information would present a threat to the patient’s well-being.”18
As we have witnessed over the past 30 years, by misapplying the “therapeutic privilege,” abortionists have denied women the right to know much at all about the baby, the procedure, or the physical and psychological risks they face with an abortion. When women do ask and receive “counseling,” it is merely a “sales pitch” for the abortion.19 Abortionists have driven a truck through this narrow exception for informed consent, and have stream-rolled women in the process.
As we have witnessed over the past 30 years, by misapplying the “therapeutic privilege,” abortionists have denied women the right to know much at all about the baby, the procedure, or the physical and psychological risks they face with an abortion.
Money
Why do abortionists refuse to inform women? The answer is money. While one would hope that all doctors have the best interest of their patients in mind, the financial gain from performing abortions trumps patient interests and undercuts any desire to discuss risks. Most abortions are performed in free-standing clinics. In 2008, 378 specialized abortion clinics nationwide accounted for 21 percent of all abortion providers, but performed 70 percent of all abortions. The same year, 24 percent of abortions were performed in non-specialized clinics. In contrast, only 4 percent of all abortions were performed in hospitals.20
Whether the physician who is performing the abortion owns the clinic or is an employee of the clinic, the pecuniary interest of the institution cannot be ignored. In 2009, a director of a Planned Parenthood abortion facility made national headlines when she disclosed that Planned Parenthood pressures employees to meet abortion goals each month. As reported by Lifesitenews.com, Abby Johnson, an ex-director of Planned Parenthood in Texas, said she grew uncomfortable when she was told to try to bring in more abortions because of the economic downturn. “Every meeting that we had was, ‘We don’t have enough money, we don’t have enough money—we’ve got to keep these abortions coming.”21 The lives of babies and their mothers have been reduced to numbers on a balance sheet.
Mounting evidence suggests that real informed consent (including a reflection period) results in fewer abortions.22 Because real counseling reduces dollars in the pocket of the abortionist or his employer, they do not want women to know the truth about abortion.
Real Informed Consent
According to the Guttmacher Institute, as of January 2011, 34 states require that women receive counseling before an abortion is performed; 32 states require that women be given information about the specific procedure and 19 require information about all common abortion procedures. Twenty-four of these states detail the information that must be given, 22 of which require information about abortion risks. Twenty-five states require a waiting period—usually 24 hours—be- tween the counseling and the abortion. Seven states require that the counseling be provided in person and before the waiting period begins. Ten states require information on the ability of the fetus to feel pain. Ten states require information on accessing ultrasound.23
According to Americans United for Life, states continue to enact and to strengthen laws protecting women seeking abortions. In 2010, South Carolina extended its one-hour reflection period to 24 hours. Missouri enacted a true detailed informed consent statute with a 24 -hour waiting period. Missouri, Oklahoma, and Tennessee enacted measures requiring the posting of signage informing women that they cannot be coerced into having an abortion. At least three states—Missouri, South Carolina and West Virginia—considered measures to require counseling on possible fetal pain during the abortion. Missouri enacted a law requiring that for a woman seeking an abortion at or after 22 weeks, she be counseled on fetal pain. Missouri amended its law to require an abortion provider to offer the ultrasound to every woman seeking an abortion. Utah and West Virginia now require that, if an ultrasound is performed before an abortion, the abortion provider must offer to show it to the patient.24
Promoting Women’s Freedom
The North Carolina General Assembly has ignored the rights of women to know the whole story about abortion. Until now, many legislators have been satisfied with allowing abortionists to leave women uninformed about the realities of abortion, the risks involved or even who the doctor is who is performing the abortion. North Carolina law treats abortions like any other medical procedure, using a physician-centered standard and upholding the “therapeutic privilege.” In North Carolina, an abortionist does not need to say much of anything to meet the requirements of the informed consent statute and protect himself/herself from the malpractice claim of negligence or a criminal charge of battery.25
The North Carolina Legislature has an opportunity to change this travesty and really protect North Carolina women. A bill should be enacted this year and require the following:
At the time of the appointment for the abortion, a price list for counseling, ultrasounds and abortions and locations where the counseling and ultrasounds can be provided other than at the abortion clinic, including locations providing free services.
A 24-hour waiting period between counseling and abortion to provide the woman with time for reflection after she has received counseling. Information given orally and in writing by a physician, physician assistant, or registered nurse (including doctors, P.A.s and nurses unaffiliated with the abortion facility) regarding:
— Gestational age of the unborn child.
— Name of the doctor performing the abortion.
— Liability of the father for support. — Location of the hospital within 30 miles of the abortion site where the physician has admitting privileges. — Alternatives to abortion. — The right of the woman to withhold consent at any time. — If the physician has liability insurance or admitting privileges. Detailed information provided in writing and given to the woman regarding:
Information on other facilities providing counseling and ultrasounds, including facilities providing these services free of charge. • Other requirements, including:
— An ultrasound as part of the counseling 24 hours before the abortion is scheduled to be performed. The mother will be offered the opportunity to see the ultrasound at least 24-hours before the scheduled abortion.
— Reporting requirements regarding counseling and effect. Penalties for non-compliance.
• Penalties for Failure to Provide Informed Consent
Conclusion
Cease the deception. Uninformed consent is no consent at all. In fact, it is a form of tyranny. North Carolina must join other states in granting to women a freedom they have never enjoyed. If legislators are truly interested in the lives of women and their right to make informed choices, they will support a law guaranteeing to women the right to know and understand about the unborn child they are considering aborting, see an ultrasound, and know the gestational age of the child. They have a right to know the realities of the abortion procedure, including the risks involved, and the right to reflect on that decision after this counseling and before the abortion. The consequences of that decision, for women and their babies, are dire. Mothers deserve the freedom to know the truth, and babies deserve the chance to live that comes with their mother being truly informed about the decision she is facing.v
Physical characteristics of unborn children at two-week gestational increments. Information on services available to help the woman carry the baby to term, aftercare and care for women with dependent children. Information on the legal obligations of the father to provide at least financial support of the child.
Mary Summa, J.D., is an attorney in Charlotte, North Carolina, who served as Chief Legislative Assistant to U.S. Senator Jesse Helms during the 1980s. For a footnoted version of this article, please visit ncfamily.org.
ENDNOTES:
1) Whittenburg, Catherine. “Anti-abortion Group Urges Crist to Sign Bill Requiring Ultrasounds”, TBO.com, June 10, 2010.
group-urges-crist-sign-bill-requirin/> (February 1, 2011).
2) Linda E., “Multiply Abused,” PregnantPause.org. available athtm> ( January 18, 2011)
3) Planned Parenthood v. Casey, 505 U.S. 833 (1992).
4) Rue, VM, Coleman PK, JJ, Reardon, DC. “Induced Abortion and Traumatic Stress: A Preliminary Comparison of American and Russian Women. Medical Science Monitor, 2004 10(10); SR 5-16.
5) Speckhard & Rue, “Post Abortion Syndrome: An Emerging Public Health Concern”J. Soc. Issues. 48(3): 95-119 (1982).
6) “64% of Women Having Abortions Report Being Pressured: Trauma Symptoms Are Common,” http://www.theunchoice.com, November 16, 2004, http://www.theunchoice.com/News/ruestudy. htm (February 1, 2011).
7) P.I. Frank, et al. “Induced Abortion Operations and Their Early Sequelae: a Joint Study of the Royal College of General Practitioners and The Royal College of Obstetricians and Gynaecologists,” Journal of the Royal College of General Practitioners, April 1985. 175-180.
8) Levin, A. et al. “Ectopic Pregnancy and Prior Induced Abortion” Am J Public Health. 1982 Mar;72(3):253-6.
9) Levin, A. et al. “Association of Induced Abortion With Subsequent Pregnancy Loss,” JAMA. 1980. 243:2495-2499.
10) Melbye, M. et al. “Induced Abortion and the Risk of Breast Cancer”. The New England Journal of Medicine, 9 January 1997. 336(2): 81-85.(February 1, 2011).
11) Reardon, David. Aborted Women-Silent No More (Chicago: Loyola University Press, 1987)
12) Harris V. McRae, 448 U.S. 297, 325 (1980).
13) See Stuart, Joseph. “Abortion and Informed Consent: A Cause of Action.” 14 Ohio N. U. L. Rev. 1 (1987); Reardon, D. “Informed Consent: The Abortion Industry’s Achilles’ Heel”, Elliott Institute. Reprinted atV2/n2/INCONSNT.htm> (February 1, 2011)
14) 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914).
15) Woods v. Brumley, 71 N.M. 221, 377 P.2d 520, 524-25 (1962).
16) Cantebury v. Spence 464 F2d. 772 (D.C. Cir.), cert. denied 409 S.Ct. 1064 (1972).
17) Gale Encyclopedia of Public Health:
Informed Consent. < http://www.answers.com/topic/informed- consent> January 19, 2011.
18) Canterbury at 789.][Joseph Stuart,“Abortion and Informed Consent: A Cause of Action,”14 Ohio N.U. L. Rev. 1, (1987) at 10.
19) Rebecca Pierce-Banks. “Tracy’s Abortion Remembered – A Sales Pitch and Absent Boyfriend” LifeSiteNews.com. 16 August 2005. <http://www.lifenews.com/2005/08/16/nat- 1546>( January 19, 2011)
20) Rachel Jones, Kathryn Kooistra, “Abortion Incidence and Access to Services In the United States, 2008,” Perspectives on Sexual and Reproductive Health, Vol. 43 No. 1 March 2011.
21) Tillman, James, “Planned Parenthood Pushes Abortion for Profit’: Ex-Abortion Facility Director”, LifeSiteNews.com,
November 5, 2009. http://www.lifesitenews.com/news/archive/ ldn/2009/nov/09110505. (February 1, 2011).
22) See Randolph, Toni, “Abortions Hit 30 year low in Wake of Waiting Period Passage” Minnesota Public Radio, July 12, 2005, http://news.minnesota.publicradio.org/features/2005/07/12_ap_ abortion/];Also: Barbour, Charles, Shughart, William. “Legal Institutions and Abortion Rates in Mississippi” Cato Journal, Vol. 18, No. 1 (Spring/Summer 1998)][“Serious About Reducing Abortion? Make Women See an Ultrasound of the Procedure” Christian Science Monitor, http: http://www.csmonitor.com/Commentary/Opinion/2010/0107/Serious-about-reducing-abortion- Make-Women-see-an-ultrasound-of-the-procedure. (January 10, 2011).
23) “Counseling and Waiting Periods for Abortion”, Guttmacher Institute: State Policies in Brief, January 1, 2011. http://www. guttmacher.org/statecenter/spibs/spib_MWPA.pdf. ( January 19, 2011)
24) Americans United For Life 2010 State Legislative Session Report, December 21, 2010. http://www.scribd.com/ doc/45748671/2010-State-Session-Report. ( Feb. 1, 2011).
25) N.C.G.S. 90-21.13 (2005).
Re-printed with permission – Originally appeared – “Informed Consent: Equal Treatment for Women in Medicine.” Family NC. Spring 2011.
Myth of Sexual Liberty by Mary Summa, J.D.
In 09 Mary Summa, JD on 2012/03/22 at 9:11 AM
How Lawrence v. Texas Threatens Families and Freedom
On July 12, 2011, Kody Brown and his “wives” stood before the cameras to announce that they were filing a lawsuit challenging Utah’s anti-polygamy law. Proud polygamists, Kody and company star in the hit reality show “Sister Wives,” which follows the lives of this Mormon clan. Recently, the state of Utah began investigating their polygamous relationship, and the Browns fled to Nevada to avoid prosecution. They are now suing the State of Utah, claiming that the anti- polygamy statute is unconstitutional. They have hired Jonathan Turley, a high-powered constitutional lawyer and law professor at George Washington University Law School, to pursue their case against the State and to defend them if they are prosecuted.
In response to the Brown lawsuit, Americans barely seemed to stir from a deep sleep. Perhaps they just do not believe that a case like this will actually go anywhere. After all, polygamy is illegal in every state and has been illegal under federal law since the mid-1800s. The thought of legalizing may just seem beyond the pale.
Sadly, it is not. Kody Brown’s case is a logical step down the slippery slope our nation embarked on 50 years ago. Encouraged by the legal elite, the judiciary has advanced the social agenda of this country’s few to the detriment of many. It has weakened the moral fiber of this country and has abandoned its job to protect the fundamental rights of its citizenry. Eight years ago, waving the banner of liberty, the Supreme Court, in Lawrence v. Texas, for the most part nullified state anti-sodomy laws and opened the legal floodgates for future legal attacks on “morality laws.” Most recently, the logic of Lawrence has been used to legalize same-sex “marriage,” and now, with the skillful pen of Jonathan Turley, Lawrence is being employed to promote the legalization of polygamy.
Americans need to wake up. Kody Brown’s victory, should the case prevail, could spell liberty’s defeat. To change course, Americans need to appreciate the proper foundation of law, the appropriate role of government, and the role that traditional marriage serves in preserving freedom. If Americans remain asleep, freedom now enjoyed will be a thing of the past. A Foundation in Natural Law
The Merriam-Webster Dictionary defines law as “a binding custom or practice of a community.” Law is, and always has been, a method to regulate human behavior in civil society.
As noted by the late Notre Dame Professor Ralph McInerny, natural law provides foundational values which are critical for a society’s survival. Natural law teaches “that there is an absolute right and wrong and that God is the ultimate source of law.” Fairness, goodness, and justice are founded in divine law.
Furthermore, natural law recognizes “natural rights” bestowed on man by God. Government’s role is to protect these rights. These fundamental rights include, but are not limited to, the right to life, the right to liberty, the right to ownership of property, the right to marry.
Natural law is reflected in our founding documents. Thomas Jefferson, a student of classical thought, embraced natural law in the Declaration of Independence when he wrote, “all men are created equal. They are endowed by their Creator with certain inalienable rights, that among these rights are life, liberty and the pursuit of happiness.” The Bill of Rights, first introduced by James Madison at the first Congress, adopted and ratified by the states in 1791, encapsulated these rights in the U.S. Constitution.
Historically, legislative enactments and court decisions have reflected the principles of natural law. Rights were recognized as emanating from the Creator—the right to life, the right to freedom of religion, speech, press, the right to private property, the right to marry, the right to educate and rear one’s own children free of government interference—and when threatened, were protected by the courts. “Morality laws,” enacted by state legislatures, reflected natural law.
Legal Positivism
Legal positivism dictates that God and the moral law serve no role in governmental law. Law is a separate and distinct creation of man and a product of force, not conscience or human reason. The courtroom, in the mind of the legal positivist, is a “laboratory” where law is “discovered.” Jurists embracing this theory view their role not as determining the founding fathers’ intent in the Constitution, but as interpreting a “living and breathing” document that should evolve as society needs change. As pointed out by Paul Rickert at the Helms School of Government at Regent University, legal positivism shifts power away from the individual to the state and the “elevation of personal freedom over accepted morality.”
Legal positivism reached the highest levels of the American judicial system with the confirmation of Oliver Wendell Holmes to the U.S. Supreme Court in 1902. While it continued to grow in popularity on the Court during the early part of the 20th Century, legal positivism did not hold a consensus on the Court until the 1960s.
Removing God from Public
The social and legal consequences of this newly adopted jurisprudence soon became painfully evident. In 1961, in Torasco v. Watkins, the Court struck down a Maryland state statute requiring individuals holding the position of notary publics to acknowledge the existence of God. In 1962, in Engle v. Vitale, the Court struck down a 10-year- old non-denominational prayer recited in New York public schools. In 1963, in Abington Township v. Schempp, the Court struck down a state statute requiring daily Bible reading in public schools.
This reverse discrimination of removing God from public policy, according to Charles Rice, an eminent constitutional law professor, did not simply create “neutral” public policy but, by default, resulted in “a governmental preference of agnostic secular humanism.” Agnostic secular humanism takes no position on the existence of God and holds that man, not God, is the final arbiter of right and wrong. Ultimately, as Professor Rice points out, that authority will be seized by the State.
The Court’s Assault on Morality
With God ushered to the exit door of public policy, the dismantling of “morality laws” soon followed. The opportunity arose in 1965, when the Court addressed the constitutionality of “Com- stock Laws” that had enjoyed a long history in the United States. In 1873, the U.S. Congress enacted the Comstock Act, which outlawed the “interstate mailing, shipment or importation of articles, drugs, medicines and printed materials of ‘obscenities,’ which applied to anything used ‘for the prevention of conception.’” By 1920, according to one source, 45 states had enacted laws to regulate “obscene” or “immoral” information. By 1960, 30 states explicitly outlawed the distribution of information or advertising about articles, instruments, and medicine concerning contraception, and 24 states explicitly banned the sale of such articles, instruments, or medicines. Several states had exceptions to this law for physicians, pharmacists, or “legitimate businesses.”
Law is, and always has been, a method to regulate human behavior in civil society.
Amidst this political and legal backdrop, in 1961, Estelle Griswold, an Executive Director of Planned Parenthood in Connecticut, opened a Planned Parenthood clinic that provided contraceptives and contraceptive counseling to married couples. Griswold was arrested, prosecuted, and found guilty of violating Connecticut’s Comstock law. In turn, Griswold filed a lawsuit against the state challenging the law’s constitutionality. In 1965, the Supreme Court overturned the conviction and, in effect, nullified Connecticut’s Comstock law.
Griswold served as a legal launch pad for an all-out assault on fundamental rights traditionally protected by the courts. While some of these rights have been repaired in subsequent decisions, they were never fully restored:
• In 1973, the Supreme Court gutted the fundamental right to life.
• In 1976, it weakened parents’ rights to make medical decisions for their children by denying parents the right to consent to their child’s abortion.
• In 1977, it denied parents the fundamental exclusive right to consent to their child’s use of contraceptives.
Griswold paved the way for legal positivism in American courts. The courts, both federal and state, abandoned their traditional role of Chief Guardian of fundamental rights and became, instead, Chief Creator of “rights.” In effect, Griswold stole from the people the power of self-governance through representation and gave it to the courts. The courts could now overturn laws reflecting accepted morality under the guise of the “freedom” of the few. Secondly, as pointed out by Professor Rice, the case set into law an important tenet of secular humanism—that there is no inherent connection between the unitive and procreative aspects of sex and that man is the final determiner of whether sex will have any relation to procreation.
The cultural collapse that coincided with the court’s newfound role in American jurisprudence cannot be denied. According to William Bennett in his book, The Index of Cultural Indicators, between 1960 and 1990:
The courts, both federal and state, abandoned their traditional role of Chief Guardian of fundamental rights and became, instead, Chief Creator of “rights.”
There has been more than a 500 percent increase in violent crime; more than a 400 percent increase in illegitimate births a tripling of the percentage of children living in single-parent homes; a tripling in the teenage suicide rate, a doubling in the divorce rate and a drop of almost 80 points in SAT scores. … The social regression of the last 30 years is due in large part to the enfeebled state of our social institutions and their failure to carry out a critical and time-honored task: the moral education of the young.
Although few would blame the courts for this moral decay, their hand in aiding and abetting the culture’s decline cannot be refuted.
A “Right” to Sex
Before 1986, the Supreme Court had tacitly approved of non-marital sexual activity by finding a fundamental right to privacy for minors to obtain abortions and contraceptives without parental approval, but had never addressed the issue head-on. In 1986, the opportunity arose, and the Court upheld a state statute prohibiting sodomy. In 2003, in Lawrence v. Texas, the Court did an about-face. Refusing to call it a “fundamental right,” the court used a distorted view of “liberty” to declare a Texas anti-sodomy law unconstitutional. Justice Anthony Scalia warned in his dissent that the case could spell the end to all “morality laws.” His words have proven prophetic.
Almost immediately, law professors and their students began opining about Lawrence’s impact on the constitutionality of statutes outlawing incest, adultery, bigamy, and prostitution. Surely, many gleefully argued, Lawrence would serve to justify same-sex “marriage,” and “free” Americans from the archaic legal restraints on all private consensual sexual behavior.
A few state courts subsequently used the Lawrence decision to impose same-sex “marriage” on their citizens. In fact, the ink was barely dry on the Lawrence decision when State Supreme Court Justice C.J. Marshall applied it to legalize same-sex “marriage” in Massachusetts in 2003. In total, since the Lawrence decision, six states and the District of Columbia, have legalized same-sex “marriage.”
Broadening Lawrence
Attempts to overturn other laws restricting sexual behavior soon followed the Lawrence decision. Most notably, in 2005 in Muth v. Frank, petitioners asked the U.S. Court of Appeals for the Seventh Circuit to find a Wisconsin law prohibiting incest unconstitutional. In this case, a brother and sister married. In 1997, the couple was charged and convicted of incest. During the court proceedings, using Lawrence to justify their position, the couple argued that the Lawrence case prohibited all legislative proscriptions on sexual activity between consenting adults. Writing for the majority, Judge Daniel Manion, a Reagan appointee and a strict constructionist, refused to find that Lawrence granted a fundamental right to engage in incest. Later that year, the Supreme Court refused to review the case and so the Manion decision stood. Perhaps, the Supreme Court, by denying review of the circuit court’s decision, was unwilling, just yet, to face the logical consequences of its previous actions. The blistering response from the legal community over the Manion decision indicates that this issue is far from over. At least one other circuit court has refused to find that Lawrence recognized a “fundamental right” to sexual intimacy.
A Blessing in Disguise?
Marriage between a man and a woman, intended for a lifetime, while recognized by the government, is ultimately a God-given institution. It has pre-existed and survived government. It has served the purpose of funneling sexual desires into an institution that provides the best environment for raising children. Traditionally, government has protected the rights of fit parents to rear children as they deem appropriate. Overall, the family unit has escaped the meddling hand of government control.
Legally protecting the right to engage in sexual activity—homosexual and heterosexual—outside of marriage devalues marriage as a critical institution for the rearing of children. Legalizing institutions that mimic marriage and legally creating rights that emanate from those institutions threaten parental autonomy traditionally enjoyed within the walls of marriage. Legalizing polygamous marriage undercuts a key component of marriage—sexual fidelity to one person—and could be the knock-out blow to marriage as a social institution protecting freedom.
The Court may still face the consequences of its decision in Lawrence. Notwithstanding a legal hurdle in September, most legal scholars anticipate that a battle to stop same-sex “marriage” in California may soon reach the U.S. Supreme Court. The Court will then be forced to face whether to constitutionally justify same-sex “marriage.” While that case winds its way through the legal maze, however, Kody Brown and his lawyers may be on a faster track. If the Brown polygamy train reaches the Court first, the collective conscience of the court may see the legalization of polygamy as just too great a leap and jeopardize the legalization of same-sex “marriage.” Indeed, Kody Brown’s lawsuit may not spell the end of traditional marriage, but instead prove to be its saving grace.
Preserving Freedom
Seeking justice should be the highest goal of American jurisprudence. By routinely renouncing natural law in favor of legal positivism, the courts have abandoned their preeminent duty. Mortimer Adler, an American philosopher, has suggested that by rejecting absolute good and absolute truth, the legal positivists “can find no basis for the distinction between what ‘ought’ to be desired or done and what is desired or done… Just and unjust is determined solely by whoever has the power to lay down the law of the land.”
Historically, the movements against slavery, segregation, and genocide were driven by natural law and scriptural ideals, rather than temporal culture. Without natural law’s impetus, these valid movements would have lacked justification and would have been snuffed out by the will of the majority.
Since its inception, America has always been the shining beacon of hope for millions around the world thirsting for freedom. Her civil institutions have been constrained by the belief that their role is to preserve fundamental rights given by a gracious God. Her people have understood and cherished their independence and self-government and the understanding that enduring freedom rests in the pursuit of truth. Marriage between one man and one woman has served the critical role of providing the best environment for the rearing of children, the nation’s future citizens.
Of late, with the judiciary at the helm, our nation has taken a different path, which will only lead to its demise as the freest nation in the world. But it is not too late to correct the error. Americans can reclaim their nation’s liberties by using the ballot box. They must elect legislative and judicial candidates who believe in absolute moral truth and that the government’s role is to preserve, not create, fundamental rights, and that justice should be the highest goal of American law. If legislators and judges hold these beliefs, blessings of liberty will be preserved for America’s posterity. If they do not, the world will witness the demise of the greatest experiment of liberty ever known. The choice is ours.
Mary Summa, J.D., is an attorney in Charlotte, North Carolina, who served as Chief Legislative Assistant to U.S. Senator Jesse Helms during the 1980s. For a footnoted version of this article, please visit ncfamily.org.
Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.
Poisonous Fruit: Abortion’s Dark Beginnings in Eugenics by Mary Summa, J.D.
In 09 Mary Summa, JD on 2012/02/10 at 9:11 AM
“Frankly, I had thought that at the time [the case]…was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”1
One may think this statement was made by a Supreme Court Justice who sat on the bench in 1927, and was referring to the Buck v. Bell case, which upheld the constitutionality of forcible sterilization. However, this startling statement was made by Supreme Court Justice Ruth Ginsberg in an interview with the New York Times Magazine on July 7, 2009 in reference to the Roe v. Wade case, which legalized the slaughter of millions of babies, many from, as Justice Ginsberg stated, the low income, at-risk population.
The North Carolina General Assembly is poised to reimburse victims of the State’s Sterilization Program. Certainly, that’s the least that can be done. But make no mistake about it, simply providing restitution to these victims will not close the door on North Carolina’s shameful involvement in the Eugenics Movement. This movement continues today, sanctioned by the General Assembly through legalized abortion—a shameful violation of basic human rights that will be scrutinized by future generations the same way the eugenics movement is being regarded today.
Eugenics and Its Proponents
The American eugenics movement swept across the United States in the first half of the 20th Century. First coined by Sir Francis Galton, a cousin of Charles Darwin, it describes a belief that the law can be used to “improve” the human population by encouraging people with above-average intelligence to procreate at higher rates, while discouraging or preventing “undesirables” from procreating. Their methods to reduce certain populations from procreating included segregation, sterilization, birth control and abortion.2
The American eugenics movement of the 20th Century captured the imagination of America’s financial and intellectual elite including the Rockefellers, the Kelloggs, the Harrimans and the Carnegies. The Carnegie Institute funded the Station for Experimental Evolution at Cold Spring Harbor on Long Island, beginning in 1904. The Station housed the Eugenics Record Office (ERO), funded with money from the Harriman family. The ERO served as a “policy center for the activities of the organized eugenics movement.”3 The Kellogg family started the Race Betterment Society. The Rockefellers started the Population Council, a promoter of eugenics disguised as population control.4
Harry Laughlin, the Superintendent of the ERO, was among the most effective American eugenicists. He dedicated his efforts to the eradication of people “generating the most social costs, those confined to institutions and recipients of welfare programs.”5
In 1914, Laughlin published the Model Eugenical Sterilization Law. The 1924 Virginia Eugenics law, modeled after Laughlin’s, was upheld by the U.S. Supreme Court in 1927 in the case Buck v. Bell.6
American eugenicists sought legal enforcement of their agenda, and eugenics proponents scored their first victory in 1907 with the passage of a law allowing forced sterilization in Indiana. By 1935, all but 13 states, including North Carolina, had sterilization laws in effect or had bills pending in state legislatures.7 In total, 31 states enacted compulsory sterilization laws and the majority remaining in effect until at least the mid-1960s.8
In the 1940s and 50s, the media exposed the link between the Nazi Regime’s eugenics programs and the U.S.’s sterilization programs, and states began repealing sterilization laws. Still, however, eugenicists did not abandon their cause. They simply cast their movement in a more favorable light. Funded with Rockefeller money, the movement was rebranded as a population control program, and in 1952, they founded the Population Council.9 The Population Council’s objective was clear—through legal reforms, curtail population growth and preserve the “quality” of the population.10
North Carolina’s Sterilization Program
North Carolina’s entrance onto the eugenics stage can be described as tepid at best. In 1919 North Carolina became one of the first southern states to enact a compulsory sterilization law.11 Concerns about the law’s constitutionality, however, temporarily kept the statute from being implemented.12
For a few years, North Carolina seemed to lose its penchant for forced sterilization. However, the 1927 Supreme Court case, Buck v. Bell, which found Virginia’s sterilization law constitutional, seemed to breathe new life into North Carolina’s enthusiasm for the movement. Just two years later, in 1929, North Carolina enacted a second eugenics law, authorizing the forced sterilization of institutionalized citizens without a hearing and without a right to appeal. In all, 49 people were sterilized under this law before it was found unconstitutional13 by the N.C. Supreme Court in 1933.14
Undaunted in its mission to “free” the state of the “unfit,” the General Assembly passed a new law in 1933, which addressed the constitutional deficiencies of the 1929 law and established an Eugenics Board.15 The Eugenics Board approved over 90 percent of those individuals recommended for sterilizations by doctors and social workers.16 During the Depression years, however, the Board was forced to keep sterilizations at a minimum because of a lack of funds.
Targeting the “Unfit”
Almost simultaneously with the upstart of the sterilization programs, North Carolina officials expanded their assault on the “unfit” with birth control funded by a member of the country’s financial elite. Dr. Clarence Gamble, of the Proctor & Gamble soap fortune, came to North Carolina almost by happenstance. An avid eugenicist, Gamble was spending his fortune supplying birth control supplies to the natives of an island off the Florida coast. The nurse in charge of the program, Frances Pratt, longed to return to her native North Carolina, and convinced Gamble to approach the state about a birth control program here. In his proposal to the state, Gamble offered to fund a project to provide contraception to poor citizens by providing the supplies and the nurse, Miss Pratt. The program would be under the umbrella of the State Public Health Department.The officials at the State Public Health Department jumped at the chance. In March 1933, North Carolina became the first state in the country to sponsor a health department birth control program.17
Gamble’s money was quickly used to expand birth control clinics across the state. In 1933, there were only three private clinics in the state. Five years later, the state had created 56, and by mid- 1939, according to one source, 62 birth control clinics existed in the State, second only to New York. Gamble’s “success” in establishing clinics is particularly startling when one considers that North Carolina housed 13 percent of the country’s birth control clinics with only three percent of the nation’s population.18
It cannot be denied that these clinics operated for the purpose of advancing eugenics. Despite his claim that he was concerned about the population he targeted—the poor, ignorant, “unfit”—Gamble resisted attempts to expand health services beyond contraception. According to James Miller of the Population Institute, Gamble clashed with the South Carolina Public Health Director when the suggestion was made that he expand his services to other health services. Bristling at the suggestion, Gamble reportedly wrote Margaret Sanger that he did not want his financial contribution, “diluted with a lot of general health work.”19
After four years, Gamble withdrew his funding because of the low participation rates around the State. Nonetheless, the venture reaped dividends for Gamble. It had provided a state-wide laboratory for him to test the efficacy of his preferred contraceptive methods. Furthermore, the project produced respectability for birth control as an eugenics tool within the State and gave him personal respectability as an eugenics proponent.20
Gamble’s interest in North Carolina and eugenics did not end with his contraceptive experiments in the State. In 1947, he joined forces with James G. Hanes, the Winston-Salem hosiery tycoon, and Dr. C. Nash Herndon, a renowned geneticist at Bowman Gray Medical School, among others, to found the Human Betterment League of North Carolina. Reportedly, Gamble provided $5,000 in seed money. In later years, Gamble continued to donate generously to the Society. Indeed, according to the Winston-Salem Journal, one year he funded most of the sterilizations in Orange County.21 According to the Population Institute, Gamble became the organization’s biggest contributor.22
The Human Betterment League of North Carolina was just what the fledgling State sterilization program needed. Sterilizations had peaked at 202 in 1938 and fallen to 117 in 1945.23 The League brought political clout, legitimacy, and national recognition to the Eugenics Board that it had not previously enjoyed. The League also brought money and a massive publicity campaign and created almost a witch-hunt atmosphere against the “unfit,” expanding the net to include those “unfit for parenthood.”24 In 1963 alone, nearly one-half of the sterilizations nationwide were performed in North Carolina.25
In 1968, six years before the last sterilization in North Carolina, one researcher from the Walter Reed Army Institute of Research described the State’s policy as “the most systematic program in the country.”26 Concerns about the rising costs of welfare for unwed African-American mothers prompted state officials to target efforts toward that population. After 1950, African-American blacks were sterilized at a higher rate than whites, leaving some to conclude that sterilizations in North Carolina became more about racism than about eugenics.27 The last sterilization in North Carolina occurred in 1974. The Eugenics Board of North Carolina was abolished in 1977. The remaining involuntary sterilization laws were repealed in 2003.
An Unholy Trinity
As the eugenics movement in America grew, prominent eugenicists began to pool their resources and efforts. While financially linked to sterilization, Gamble continued to expand his influence with his eugenics-driven birth control programs. In 1947, he began working with his long-time friend Margaret Sanger.
An avid eugenicist herself, Sanger sought extermination of the “unfit” through birth control, rather than sterilization. In 1923, she opened the American Birth Control League (ABCL) whose mission was to abolish the federal Comstock Law, a law that prohibited the creation, importation, or mailing of drugs, devices, or articles that prevented conception or caused abortion. In her book, The Pivot of Civilization, Sanger revealed her disdain for the poor by characterizing the poor as “dead weight of human waste,” and charity as a means to “render them [the poor] to a menacing degree dominant.”28 Furthermore, the ABCL’s Board of Directors was dominated by well-known eugenicists, including Harry Laughlin.29
In 1939, the ABCL was reconstituted into the Birth Control Federation of America (BCFA), and the racial targeting of the eugenics movement through birth control became apparent. In 1943, the ABCL changed its name for a final time and became Planned Parenthood Federation of America (PPFA) with its initial offices housed in the offices of the American Eugenics Society.
Gamble had previously served as an at-large director for the ABCL. He then became the organization’s regional director for the South in 1947. Gamble quickly brought suggestions to the Board regarding Sanger’s “Negro Project,” an initiative with the objective to reduce the procreation of African-Americans in the South.
Abortion as Eugenics
By the 1960s, the Rockefeller family was chin deep in the eugenics movement, under the guise of population control. As part of their efforts, they funded the development of the American Law Institute’s Model Penal Code. Understanding that state abortion laws could not be overturned overnight, proponents of legalized abortion used the Penal Code as a vehicle to liberalize abortion laws state by state.30
The Model Penal Code smacked of eugenics in that it allowed for abortions in cases of mental or physical deficiencies in the mother or the child. Furthermore, it allowed for the abortion of healthy babies in cases of rape or incest. More radical eugenicists advocated unrestricted abortion.31
Understanding the mindset of North Carolina’s power brokers in the 1960s, it is easy to understand how the State was ripe-for-the-picking by those advocating abortion. The state was a “true believer” of the eugenics movement and despite eugenics’ association with the Holocaust, North Carolina never flinched, even once, as to the righteousness of the cause. North Carolina had associated herself with nationally known eugenicists with deep pockets, revealing her willingness to use just about any means possible to exterminate the “undesirables.”
In 1967, the General Assembly adopted the Rockefeller-funded Eugenics Abortion Law, becoming one of the first three states in the country to do so. The radical eugenicists did not need to wait long for unrestricted abortion nationwide. In 1973, the United States Supreme Court delivered two decisions, Roe v. Wade and Doe v. Bolton, which made unrestricted abortion legal nationwide. Today, 85-90 percent of babies with Downs Syndrome are aborted.32 African-American babies are being aborted at the highest rate in the country and four times that of white babies.33 What eugenicists originally sought with sterilization, they are accomplishing with abortion.
In the wake of the Roe v. Wade and Doe v. Bolton decisions, many states began scrambling for ways to protect the unborn and limit abortion. In North Carolina, however, fortified with the same callous disregard for human life it had exhibited with the sterilization program, the General Assembly underscored its support for abortion. Subsequently, the General Assembly amended its abortion statute to mimic the protections of Roe. Although legally unnecessary, the majority of the General Assembly made it clear that it supported the termination of innocent human life all nine months of pregnancy for any reason, with or without Roe v. Wade.
The spirit of the decade was best illustrated by a 1976 court decision, two years after North Carolina’s last sterilization. In In re Moore,34 the justices found the forced sterilization of the mentally handicapped constitutional. The majority’s total disregard for all human life, not just those exposed to forced sterilization, became crystal clear: “The interest of the unborn child is sufficient to warrant sterilization of a retarded individual … The people of North Carolina … have a right to prevent the procreation of children who will become a burden on the State.”
Undoing Wrongs
It must be difficult for North Carolina to let go of its dark past. Despite dozens of bills having been introduced in the North Carolina General Assembly to restrict abortion, very few have ever even been given a hearing, until this past legislative session when the General Assembly enacted three pro-life bills—including one to guarantee that women seeking abortion are given vital information about the baby and the abortion procedure, the risks involved, and contemplation time before the abortion is performed. Despite these victories—the Woman’s Right to Know Act, coupled with previously enacted laws restricting public funding and requiring parental consent (weakened by the court), North Carolina has a long way to go if she wants to shed her eugenics past.
Championing Liberty
Man is made in the image and likeness of God. Because of this special status, man is given special dignity and inherent rights by a gracious God, including the right to life and the right to liberty. In a free society, the government cannot participate in or even condone the infringement of these rights. It must protect them, and be a servant to the people, instead of attempting to be their master. The founding fathers recognized these principles; these are the bedrock principles upon which they built the foundation of this republic.
Between 1929 and 1974, North Carolina shamefully stole the fundamental right to liberty from its most vulnerable citizens. Government officials sterilized them by the thousands, in an attempt to rid the State of the “unfit.” Eight years before the door was closed on that horrible chapter in State history, another chapter opened, with the authorized wholesale slaughter of the most innocent of human life. A woman’s right to “choice” did not spawn legal abortion. Eugenics did.
G.K. Chesterton, an outspoken opponent of eugenics,35 once wrote: “Unless a man becomes the enemy of an evil, he will not even become its slave but rather its champion.”36 If North Carolina is to be restored to being a State that cherishes freedom, it must do more than provide restitution for sterilization victims, as noble as that gesture is. North Carolinians must elect statesmen, not politicians, at every level of government who understand the inherent right to life, and who will fight to ban abortion in this State and across this nation. If not, such demonstrated ambivalence will continue to champion eugenics, an evil all should despise.
Mary Summa, J.D., is an attorney in Charlotte, North Carolina, who served as Chief Legislative Assistant to U.S. Senator Jesse Helms during the 1980s. For a footnoted version of this article, please visit ncfamily.org.
Re-printed with permission from the NORTH CAROLINA FAMILY COUNCIL MAGAZINE PUBLICATION.
“Poisonous Fruit: Eugenics and Abortion.” Family NC. Winter 2012.
Truth to Ponder 