SOUTH CAROLINA SENATE TESTIMONY IN SUPPORT OF S. 217 OF

ALLAN E. PARKER, JR.

President, The Justice Foundation

[Video of this testimony can be viewed here.]

My name is Allan E. Parker, Jr. I am currently the President of The Justice Foundation. I graduated from the University of Texas School of Law number 1 in my class in 1979. I was a member of the Law Review with other awards and distinctions. I am a former Professor of Law. I have studied and taught International Law. See my attached curriculum vitae.

I have had the great honor of representing Norma McCorvey, the former “Roe” of Roe v. Wade and Sandra Cano, the former “Doe” of Doe v. Bolton in their efforts to reverse their two cases that brought legalized abortion to America. The Justice Foundation has collected the legally admissible written testimonies of over 4,500 women hurt by abortion and I have represented over 3,355 women hurt by abortion in cases at the United States Supreme Court.

The United States Supreme Court cited The Justice Foundation’s Amicus Curiae Brief on behalf of Sandra Cano and 180 Women Hurt By Abortion in its decision known as Gonzales v. Carhart in 2007 which stated as follows: “It is unexceptionable to conclude some women come to regret” their abortions. “Whether to have an abortion requires a difficult and painful moral decision” and is “fraught with emotional consequence.” The Court also noted that “severe depression and loss of esteem can follow” an abortion. Gonzales also reaffirmed that “[t]he government may use to voice and its regulatory authority to show its profound respect for the life within the woman.” 127 S. Ct. 1610, 1633 (2007). The Court upheld a federal statute which struck down the inhumane late term abortion procedure.

The victory in that court decision led to other court decisions based upon the women’s testimony including Planned Parenthood v. Rounds¹ in which the 8th Circuit Court of Appeals upheld a South Dakota statute requiring an abortionist to tell a woman that “…abortion will terminate the life of a whole, separate, unique, living human being,…” and that ‘human being’ in this case means ‘an individual living member of the species of Homo Sapiens‘. In that case the 8th Circuit Court of Appeals en banc (meaning the whole court) determined there was adequate scientific evidence to support that statement so that it is not false, misleading or ideological. The 8th Circuit Court also upheld the South Dakota statute requiring abortionists to tell women if they have abortions, they have an increased risk of suicide and suicidal ideation or thoughts.²

Having analyzed S. 217, it is my conclusion that the Bill is constitutional under the U.S. Constitution. The United States Constitution in both the 5th and 14th Amendment says that no person shall be deprived of life without due process of law. Since the scientific evidence is quite clear now that a child in the womb is a human being from the moment of fertilization, it is clear that such a human being is a person who should be entitled to the full legal protection of the law with respect to their right to life at a very minimum. The greatest injustice in the world today is the dismemberment and death of millions of persons, literally the most innocent children in the womb, by abortion.

In addition, abortion is a crime against humanity. A crime against humanity occurs when any government withdraws legal protection from a class of human beings resulting in their severe deprivation, including death – the ultimate deprivation of rights. Dredd Scott was such a crime against humanity by denying personhood to African Americans. Plessy v. Ferguson was a crime against humanity by maintaining “separate but equal” segregation for African Americans. Brown v. Board of Education corrected the Supreme Court’s error which had been created 58 years earlier in Plessy v. Ferguson and gave African Americans equal rights to equal facilities and benefits under the law as the Constitution had intended. Roe v. Wade is not even as old as Brown v. Board of Education was when it was reversed since it is only 44 years old and not 58.

The written Constitution is the highest law of the land, under God’s law, since we claim to be one nation under God. Our Declaration of Independence is based on God’s law, and declares that our rights come from God. We derive the legitimacy of our form of government from the written Constitution which was ratified by the people, not judges. When the government follows the Constitution this gives it the legitimacy of the consent of the governed and it becomes a government of the people, by the people and for the people.

Opinions of the Supreme Court are interpretations of the Constitution. They are applications of the Constitution to particular factual situations. Facts can change. They are not the Constitution nor are they laws of the United States in the sense that federal statutes are laws of the United States. Supreme Court decisions are binding on the parties to a case or controversy.

The Supreme Court is not infallible. The Supreme Court has reversed itself on constitutional issues over 200 times including recent issues such as the death penalty and criminal sodomy. The most famous example of the Supreme Court reversing itself is Brown v. Board of Education.

Everyone agrees that Brown v. Board of Education was a great decision. It is celebrated throughout American society as one of the crowning achievements of the U.S. Supreme Court. It is often used as an example of how the Supreme Court should expand into other areas of law and create new constitutional civil rights.

But why was Brown v. Board of Education so great? First, it is great because it corrected a horrible injustice that actually constituted a crime against humanity. As stated above, a crime against humanity occurs when a government withdraws legal protection from a class of human beings resulting in great harm to them. The Plaintiffs in Brown v. Board of Education massively documented the harm that the “separate but equal” doctrine had created in the lives of Black Americans. Brown became a great and historic decision by reversing the Supreme Court’s erroneous doctrine of “separate but equal” and restoring full dignity, humanity and legal protection to a class of human beings in America, Black Americans.

The second great thing about Brown v. Board of Education is that the Supreme Court corrected its own mistake, rather than leaving it to society or a civil war to correct its injustice. Where did the doctrine of “separate but equal” come from? It did not come from the Constitution, it came from the U.S. Supreme Court in Plessy v. Ferguson in 1896. It was contrary to the Constitution. When the radical Republicans were in control of the South through Reconstruction after the Civil War, Black Americans – the former slaves and their descendants, were given full legal rights and many of the Southern legislatures had large numbers of Black Republican representatives. However, when Reconstruction ended and control was given back to the local populations of the South, Southern Democrats created the doctrine of ‘separate but equal’. In 1896, in Plessy v. Ferguson the Supreme Court lacked the moral courage to overcome the opposition of the Southern Democrats and strike down the “separate but equal” doctrine.

Thus it was the Supreme Court’s moral cowardess, social injustice, and indifference to the plight of human beings that led to continued legal segregation. Plessy v. Ferguson was “legal.” It was approved by the Supreme Court, but it was unjust. It was only fit and right for the Supreme Court to reverse its own decision and 58 years of stare decisis in Brown v. Board of Education. All Americans agree on that today, except a radical fringe.

It took the Civil War to end another crime against humanity by the Supreme Court which was the Dred Scott case in which the judges denied personhood and thus legal protection to a class of human beings, i.e. Black Americans in slavery.

The U.S. Supreme Court did not create any new “constitutional” rights for anyone in Brown v. Board of Education. They merely reversed their own 58 yr. old precedent and reversed their own decision in Plessy v. Ferguson which had denied these rights that were specifically written in the Constitution in the 13th and 14th Amendments. Thus Brown is actually an example of how the U.S. Supreme Court is duty bound by morality, law and justice to overturn any of its previous decisions, no matter how long they have been in place, when they are a crime against humanity.

Is there a class of human beings in America today who have been denied personhood and thus legal protection, which results in their severe deprivation or even death? The answer may create shock and horror for some, but there are almost a million children in the womb killed each year by their parents. It is time for the U.S. Supreme Court and South Carolina to reverse this crime against humanity and give full legal protection to each human being, no matter how young.

Society is also ready for such a change in that we have enacted Safe Haven laws in every state in the nation including South Carolina. Any woman that does not want to take care of a child she has conceived, for whatever reason can now transfer responsibility to care for the child to the state. In all 50 states the child can be transferred to the state at the moment of birth or within a reasonable time thereafter and the state will take care of that child until adopted or he or she reaches the age of majority. See www.safehavenalliance.org. South Carolina allows 30 days for the transfer. Estimates are up to two million parents will be or are waiting to adopt healthy infants. The U.S. Supreme Court has not rated on this issue.

In fact, Plessy was Supreme Court approved devastation for the Black community. Roe v. Wade has also devastated the Black community, so much so that it could be called racist.

Plessy and segregation would still exist today if we simply followed Supreme Court opinions forever. Plessy, like Roe, was the law of the land. Even under the doctrine of stare decisis, which says we should not overturn decisions lightly, it is always time to end a crime against humanity, no matter how many people object; no matter how loud the screaming or rioting. The greatness of Brown is that the Court had the moral courage to reverse its own decision. We need that today.

Even as a Supreme Court precedent, there is no such thing as a “super precedent” as claimed for “Roe” by Senator Dianne Feinstein in the recent Gorsuch hearings. It has been 25 years since the U.S. Supreme Court considered whether to reverse Roe v. Wade in Planned Parenthood v. Casey and it significantly eroded Roe at that time. Roe v. Wade was reduced from a fundamental right to a right which cannot be “unduly burdened”. Strict scrutiny was reduced to a mid-level tier of scrutiny. The recent Hellerstadt decision only held that a bill which purported to regulate benefits for women from abortion must, in fact, produce some medical benefits, which the Court held the bill did not do. The Personhood Amendment is clearly intended for the benefit of human beings in the womb, and clearly relieving them from death is a much more significant benefit to them than the medical regulations were to women or children in the Hellerstadt case. Judge Neil Gorsuch, assuming he is confirmed, recently listed factors which he would consider in overruling precedent including

1) The age of the precedent, Roe v. Wade at 44; Plessy v. Ferguson at 58 when it was overruled by Brown v. Board of Education.

2) The reliance interests which are significant, but which are significantly lessened by South Carolina’s Safe Haven law allowing women to leave their babies at the hospital upon birth or within thirty days thereafter thus eliminating the need for abortion. Most women get abortions because they cannot or do not want the baby, not because abortions are good in themselves. No woman gets pregnant to get an abortion, according to the Texas abortionist in Hellerstadt.

3) Whether the decision was correctly decided. Most analysts conclude that Roe was an exercise of raw judicial power and it has been criticized by liberal and conservative legal scholars.

4) Whether it is constitutional or statutory. Constitutional errors must be correct by the Court. Since Roe and Doe are purported “constitutional” decisions, it is far more important for the Supreme Court to correct its decision when it is wrong since it is vastly easier for the Supreme Court to correct it than for the American people to correct it through either civil war or constitutional amendment.

5) Another factor in overturning a precedent is whether it has come to be accepted by the American people. Planned Parenthood v. Casey was supposed to put an end to the controversy and settle the abortion question. It clearly has not. In Hellerstadt, Justice Alito stated, “The constitutionality of laws regarding abortion is one of the most controversial issues in America law, but this case does not require us to delve into that contentious dispute”. Who could disagree with that? This shows that the continuing legitimacy of Roe v. Wade was not in question nor examined by the Supreme Court in the Hellerstadt case. On the other hand, in Gonzales v. Carhart, Justice Ginsburg in her dissent shows that the Court’s hostility to Roe is barely concealed and that in an appropriate case with the appropriate evidence, it might well reconsider it.

Do the rights in the Bill of Rights, and the immunities protected by the Fourteenth Amendment, apply to the unborn? In other words, is there in English Common Law and history at the time of the adoption of the Fourteenth Amendment any declaration of the rights of the unborn which would warrant incorporation into the Fourteenth Amendment? The answer is “Yes”.

There is a principle in Blackstone referring directly to the unborn, as clear and direct as any reference to the right to privacy, or any of the other more specific rights listed in the Bill of Rights. It is a clear declaration of rights and refers specifically to the unborn:³

“One who is in the womb is held as already born, whenever a question arises for its benefit.”

According to English Common Law, the unborn have all the rights of the born, and these rights have been embodied in our Constitution in the Fifth, the Ninth and the Fourteenth Amendments.⁴ All the rights in the Bill of Rights apply to the unborn, as well as the born. In addition, the members of Congress and others that passed the Fourteenth Amendment with its express right to life were significantly involved in promoting laws against abortion.

“The Fourteenth Amendment was created in 1866 and adopted in 1868, which places it directly in the time frame in which the most important burst of anti-abortion legislation in American history was occurring. It is noteworthy that the same congressmen who voted for the Fourteenth Amendment had also created, voted for, and enacted laws in the Federal Territories of Arizona, Colorado, Idaho, Montana, and Nevada that made the performance of abortion on ‘a woman then being with a child’ a crime. To argue that the creators of the Fourteenth Amendment would have approved of their amendment as the basis of a fundamental right of privacy that included a woman’s decision to have an abortion, is to argue in blatant contradiction to historical facts. These were the same legislators who had created tough anti-abortion laws. It is reasonable to conclude that the concept of a ‘person’ was so basic to the framers of the Fourteenth Amendment that it was simply taken for granted to include a person in the womb. There is no indication that legislators in the latter half of the nineteenth century viewed the concept of a ‘person’ to be separable from the concept of living human being. And yet such a distinction is imperative if we are to accept Weddington’s and ultimately the Court’s logic.” (Resler, Compelling Interest, 40-41). See also, Resler, Compelling Interest, 62-64.

The Tenth Amendment also gives powers to the state. S. 217 is a proper exercise of the state’s duty to protect the life of all persons within the state.⁵

In conclusion, in the words of Abraham Lincoln: “And upon this act, sincerely believed to be an act of justice, warranted by the Constitution … I invoke the considerate judgment of mankind and the gracious favor of Almighty God.” Emancipation Proclamation of 1863.

Advancing Life, Liberty and Justice in Him,

Allan E. Parker, Jr.,

President