Senator Dan McGee – May 26, 2009
1. An “initiative” is being considered to amend the Montana Constitution to define “person”.
2. The current language of the Montana Constitution, Article II, Section 3, Inalienable rights is:
“All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basis necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.”
The proposed amendment would add language to this Article to clarify when a person becomes a person. The specific language is still being developed, as shown below:
J2: Section 3. Inalienable rights. (1) With respect to the fundamental and inalienable right to life, the word "person" applies to all human beings from the beginning of their biological development, including conception or fertilization.
W1: "All human beings from the beginning of their biological development, including conception or fertilization, are persons and have the fundamental and inalienable right to life."
M1: A person is a human being, endowed with the inalienable right to life beginning at conception through all stages of human development.
M2: A person is a human being, endowed from conception with the inalienable right to life through all stages of human development.
M3: A person is a human being, endowed with the inalienable right to life beginning at conception.
M4: A person is a human being, endowed with the inalienable right to life from conception.
SB 406: “For the purposes of this Article, person means a human being at all stages of human development of life, including the state of fertilization or conception, regardless of age, health, level of functioning, or condition of dependency.”
(Senate Bill 406, 61st Montana Legislature)
Arguments, Page 2
3. The People of Montana have the exclusive right to amend their Constitution.
a. Article II, Section 1: Popular Sovereignty: “All political power is vested in and derived from the people. All government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.”
b. Article II, Section 2, Self-government: “The people have the exclusive right of governing themselves as a free, sovereign, and independent state. They may alter or abolish the constitution and form of government whenever they deem it necessary.”
4. Legal Background:
a. Declaration of Independence:
“We hold these truths to be self-evident – that all men are created equal; that they are endowed by their Creator with certain inalienable rights – that among these are life, liberty and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the People to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to affect their safety and happiness.” (emphasis added)
b. U.S. Constitution, Amendment 14, Section 1 (1868):
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United states; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
[* Comment: In 1868, the issue being addressed was slavery, not the question of when life begins.]
[* Comment: Notice that the 14th Amendment does not define a person. Rather, the first sentence deals with citizenship, and speaks about a born person. The second phrase of the second sentence clearly states that a state may not deprive any person of life without due process nor deny to any person equal protection. Still, no definition of “person”.]
[* Comment: I believe that, pursuant to the current language of the 14th Amendment, a State could define when a person is a person; and if a person is defined, the State could not deprive a person of life without due process, nor deny a person the equal protection of the laws.]
Arguments, Page 3
c. Black’s Law Dictionary – Definition of Person:
· “In general usage, a human being (i.e. natural person)…”
· “Unborn child. Word ‘person’ as used in the Fourteenth Amendment does not include the unborn (per Rove v. Wade)…Unborn child is a ‘person’ for purposes of remedies given for personal injuries, and a child may sue after his [her] birth.”
[* Comment: The U.S. Supreme Court does not have the legal power or standing to decide who is or is not a person. Defining a ‘person” is a policy decision, not a judgment.
[* Comment: Under the US Constitution, the Legislative Branch of Government decides the policies for the Country through the elected representatives of the People. It is the People who are the source of all rightful government.]
[* Comment: As in the case of Dred Scott (1857), the U.S. Supreme Court in Roe v Wade has erred again in defining a person.]
d. Montana Constitutional Convention, 1972, Verbatum Transcript, page 1640
· Delegate Kelleher proposes amendment to Art. II, Sec. 3, to change the word ‘born’ for ‘conceived’.
· Delegate Dahood opposes the proposed amendment, and states: “Mr. Chairman, I stand in opposition to the amendment. What Delegate Kelleher is attempting to do at this time is, by constitutional command, prohibit abortion in the State of Montana. That issue was brought before the committee. We decided that we should not deal with it within the Bill of Rights. It is a legislative matter insofar as we are concerned. The world of law has for centuries conducted a debate as to when a person becomes a person, at what particular state, at what particular time; and we submit that this particular question should not be decided by this delegation. It has no part at this time within the Bill of Rights of the Constitution of the State of Montana, and we oppose it for that reason.” (emphasis added).
· The Kelleher amendment was then defeated.
[* Comment: The Constitutional Convention occurred 1 year prior to Roe v. Wade.]
e. Roe v. Wade, 1973
· “State criminal abortion laws…violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.”
[* Comment: Notice that the 14th Amendment does not mention any right to privacy, nor the concept of a “woman’s qualified right to terminate her pregnancy.”]
Arguments, Page 4
Roe v. Wade, 1973, continued
· “Though the state cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grow and reaches a “compelling” point at various stages of the woman’s approach to term.”
· “For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion, except…for the preservation of the life or health of the mother.”
[* Comment: The Court introduces the concepts of “viability”, “preservation of the life or health of the mother”, “potentiality of human life” and a “trimester framework” for attempting to define when or if these concepts apply. Question: What legal precedents existed upon which the Court made this ruling in light of these concepts? Do these concepts exist in any previous Court rulings, or were they originated in Roe?]
f. Doe v Bolton, 1973
· “Pregnant woman does not have absolute constitutional right to abortion on her demand.”
[* Comment: Doe states that a pregnant woman does not have an absolute right; but in Montana, there are virtually no laws restricting abortion on demand during any trimester.]
g. Webster v. Reproductive Health, 1989
· “This court has emphasized that Roe implies no limitation on a State’s authority to make a value judgment favoring childbirth over abortion.”
· “…this court upheld governmental regulations withholding public funds for non-therapeutic abortions but allowing payments for medical services related to childbirth, recognizing that a government’s decision to favor childbirth over abortion through the allocation of public funds does not violate Roe v. Wade.”
· Reiterates: “…state’s interest in protecting potential human life.” (Pp 15-23)
· Viability: “…as the point at which its interest in potential human life must be safeguarded.”
· Emphasized maternal health
Arguments, Page 5
Webster v. Reproductive Health, 1989 continued
· “There is also no reason why the State’s compelling interest in protecting potential human life should not extend throughout pregnancy rather than coming into existence only at the point of viability.”
· “The doubt cast on the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that Roe’s rigid trimester analysis has proved to be unsound in principle and unworkable in practice. In such circumstances, this Court does not refrain from re-considering prior constitutional rulings, notwithstanding stare decisis…
The Roe framework is hardly consistent with the notion of a Constitution like ours that is cast in general terms and usually speaks in general principles. The framework’s key elements – trimesters and viability – are not found in the Constitution’s text, and since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. There is also no reason why the State’s compelling interest in protecting potential human life should not extend throughout pregnancy rather than coming into existence only at the point of viability. Thus, the Roe trimester framework should be abandoned.” (Pp19-21) (emphasis added)
[* Comment: The findings in Webster seem to threaten the rulings of Roe. Clearly, some Justices recognize the legal, if not moral, flaws of Roe.]
h. Planned Parenthood v. Casey
a. Addresses viability, state’s legitimate interests, and informed consent
b. Paragraph. No. 14 – discussion on effects of overturning Roe v. Wade:
“Overruling Roe v. Wade in response to divisiveness of abortion issue would address error, if error there was, at cost of profound and unnecessary damage to Supreme Court’s legitimacy, and to nation’s commitment to rule of law; only the most convincing justification under accepted standards of precedent could suffice to demonstrate that overruling would be anything other than surrender to political pressure and unjustified repudiation of principle.”
[* Comment: This is one of the most profound statements the U.S Supreme Court has ever uttered. In Dred Scott, the Court was absolutely WRONG. Almost no one today believes that black people are substandard, not citizens with no avenue to the courts, and are chattel property, able to be bought and sold. But to this day, the Supreme Court of
Arguments, Page 6
the United States has never acknowledged that wrong – it has too much pride to do so. Question: Does the Civil War, the Emancipation Proclamation and the 13th and 14th Amendments to the Constitution satisfy the Court regarding “only the most convincing justification…” ? Apparently not. It is the same in Roe v. Wade. The Court has erred, but the Court’s pride, apparently, will not allow it to acknowledge the error, because to so would be to “…surrender to political pressure…”. The Court cannot possibly be utterly wrong.]
i. Montana Case Law – State Supreme Court Decisions:
· Armstrong V. Mazurek, 98-066, 1999 MT 261, ppg 44:
“Significantly, the Convention determined not to deal with abortion in the Bill [Declaration] of Rights “at this time” and rather chose to leave the matter to the legislature because of the historical debate as to “when a person becomes a person”. (page 1640)
“Roe, handed down a year after the Convention resolved this debate from the legal standpoint, concluding that a fetus does not enjoy a constitutionally protected status – i.e., that a fetus is not a constitutional person – until “viability” (at about 26 weeks or the third trimester).
[* Comment: This statement by the Montana Supreme Court is controverted by Webster.]
FURTHER COMMENTS TO CONSIDER…
1. Court Terms:
Person – Unborn – human being – human life – potential human life – a living being
2. Biological Developmental Terms:
Zygote…embryo…fetus…unborn…born…baby…infant…toddler…child…
3. The People of Montana must define “Person”.
a. The people of Montana have the right and duty to determine this issue pursuant to Article II, Sections 1 & 2.
b. The People of Montana must decide this question.
Arguments, Page 7
4. Science Facts…
· One egg…one sperm…conception…one specific instant in time…never before in the history of mankind…never again.
· A unique life begins. It has its own DNA; Its own blood type…gender…fingerprints…A unique genome of homo sapiens” (N.D. Bill)
· A unique human-being life begins…A person begins.
5. Slavery…a parallel moral issue.
1. In the early to mid-1800’s this country faced a moral issue. That issue was slavery.
2. In 1857, the U.S. Supreme Court ruled in the Dred Scott decision of 1857 that black persons who were slaves were “chattel property; had no rights in the courts; and could be bought and sold. The decision opined that blacks were substandard as compared to whites.
3. Abraham Lincoln, in his First Inaugural Address stated: “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court…At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made…the people will have ceased to be their own rulers, having…resigned their Government into the hands of the eminent tribunal… Intelligence, patriotism, Christianity, and a firm reliance on Him who has never yet forsaken this favored land, are still competent to adjust in the best way all our present difficulty.”
4. From our historical perspective, few among us, if any, would argue today that slavery is acceptable; that a black person is “chattel property”, or that a black person is substandard.
5. The issue of slavery, the moral issue of the time, led to:
a. a unique executive order, “The Emancipation Proclamation”,
b. a civil war in which more Americans died than in all other wars combined (600,000+);
c. the 13th and 14th Amendments to the U.S. Constitution, which finally outlawed slavery in the United States.
Arguments, Page 8
6. The Moral Dilemma of Our Time, and for the past 36 years: Life and Abortion.
A. Life…When does it begin… When does a “person” become a “person”.
1. Scientifically, it is proven that a unique life begins when the chromosomes of the sperm combine with the chromosomes of the egg to create 46 chromosomal pairs. That combination occurs at conception, i.e., when the sperm penetrates the egg.
2. Life begins at conception; a person begins at conception - a unique human being.
3. This is a scientific and proven fact - not a theory; not faith, not religion.
B. Abortion…
1. Abortion kills unborn human life.
2. Abortion kills a person, regardless of the developmental term used to describe that person, i.e., “fetus”, “zygote”, “embryo”, “baby”, etc.
3. This is a scientific and proven fact - not a theory; not faith, not religion.
C. An Inconvient Truth…
…Defining that a person is a person at conception may be inconvenient to some; defining that a black person was a person was also inconvenient to some. Inconvenience does not alter the truth.
D. People are fallible.
1. Courts are made of fallible people.
2. The U.S. Supreme Court was wrong in Dred Scott.
3. The U.S. Supreme Court was wrong in Roe v. Wade.
4. Even Jane Roe says so.
E. The People of Montana must be given the opportunity to speak on this issue; an opportunity denied to them by the 1972 Constitutional Convention, and relegated to the Legislature. And now, the 61st Legislature has failed the People as well.
F. They People of Montana have the exclusive right and duty to express themselves on this most imperative moral issue.