How law students and attorneys can help the pro-life movement.

• Author: Pavone, Frank

1. THE PRIORITY OF THE TASK

   At their annual meeting in November of 1989, the United States Catholic Bishops unanimously adopted a Resolution on Abortion, which stated in part: "At this particular time, abortion has become the fundamental human rights issue for all men and women of good will." (1) That statement remains true today and has been echoed in numerous subsequent statements from the bishops over the years. No act of violence claims more victims. (2) Moreover, no social policy more radically undermines our legal system, turning on its head the very purpose of law. In their 1998 document Living the Gospel of Life, the bishops made this striking statement: "When American political life becomes an experiment on people rather than for and by them, it will no longer be worth conducting. We are arguably moving closer to that day." (3)

   Pope John Paul II spoke in similarly strong language about the implications of the failure of the state to protect the right to life in his encyclical The Gospel of Life, which is a seminal document for the pro-life movement:

   The appearance of the strictest respect for legality is maintained, at least when the laws permitting abortion and euthanasia are the result of a ballot in accordance with what are generally seen as the rules of democracy. Really, what we have here is only the tragic caricature of legality; the democratic ideal, which is only truly such when it acknowledges and safeguards the dignity of every human person, is betrayed in its very foundations.... When this happens, the process leading to the breakdown of a genuinely human coexistence and the disintegration of the state itself has already begun. ... This is the death of true freedom.... (4) There can be no arena, therefore, in which the assistance of professionals--and in no small measure, legal professionals--is more urgently needed than in the pro-life movement. What is at stake is not merely a societal trend or an undesirable policy, but ultimately the survival of society.

2. THE SPECIAL CONTRIBUTION OF LEGAL PROFESSIONALS

   The abortion issue, and therefore the pro-life movement, has many dimensions, and there are many professional organizations geared toward assisting people to use their professional skills to advance the culture of life. (5) Whether as a member of such organizations or not, and whether doing pro-life work full-time or part-time, legal professionals are needed to meet many critical strategic and practical needs of the pro-life movement at the present time. Meeting these needs corresponds to the call of Pope John Paul II to transform culture with the help of law. (6) This Article identifies eight of these areas: (1) assisting citizens to understand the nature of our government, and particularly the rote of the judiciary; (2) assisting pro-lifers to understand and utilize their First Amendment right to freedom of speech; (3) exposing abortionists and their staff to the consequences of malpractice and other illegal activity in abortion clinics; (4) assisting women who have been injured physically and emotionally from abortion; (5) gathering evidence from legal documents for pro-life activists to use; (6) assisting pastors and other Church leaders to understand and exercise their rights regarding political activity; (7) assisting pro-life organizations to create and strengthen their legal infrastructure; and (8) developing the "embryonic moment" in constitutional law.

   A. Understanding Our Republic and Our Judiciary

   Americans have never agreed with the current policy of abortion-on-demand, and most still do not understand what that policy is. Yet as people become informed about it and desire to change it, a basic understanding about how our Republic is structured and how the three branches of government interact is indispensable. Law students and attorneys exercise special influence here, because they can speak with a certain authority. Those who want to change the culture and the law are greatly encouraged when they understand these matters better.

   "Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide." (7) That quote is not from an anarchist or a totalitarian leader. It is, perhaps surprisingly, from John Adams, the second President of the United States and a signer of the Declaration of Independence. Similar quotes can be found in the writings of other Founding Fathers of our nation, because, although they had the opportunity to do so, they did not establish a democracy. What they established for the United States, instead, was a republic. (8) Quotes like the one above from Adams speak of "democracy" in the strict sense of an absolute majority rule, with no recourse from the majority's decisions unless the majority changes its mind. A republic, on the other hand, is based not simply on the rule of the majority but also on the rule of law. (9) While elected representatives pass laws, they act within the existing system of laws. The rule of law means that even rulers must follow the law and that the law must be clear, widely known, and enforced fairly. (10)

   In our republic, until recently, rulers were also thought to be accountable to a higher law, (11) and there is the key difference. There are certain laws that the majority can never change. (12) These laws flow from the fundamental rights of the human person and from God Himself. (13) The Founding Fathers recognized this and expected all future generations of Americans to recognize it as well. In an essay on the American system of government, Alexander Hamilton, a signer of the Constitution, approvingly quoted William Blackstone to the effect that the law "dictated by God [H]imself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this...." (14) James Wilson, another signer of the Constitution and a U.S. Supreme Court justice, wrote the following on the relationship of human law to God's: "All [laws], however, may be arranged in two different classes. 1. Divine. 2. Human.... Human law must rest its authority, ultimately, upon the authority of that law, which is Divine." (15) The Founders of our nation believed in biblical law, and that was the standard for law and government in our country until the turn of this century. (16) Now, instead, legal positivism (17) has become the standard, and that is the poisoned soil out of which Roe v. Wade (18) and other abortion decisions have grown.

   1. The Courts

      If you take a tour of the Capitol building in Washington, D.C., you eventually reach a relatively small room in the basement. It is the old Supreme Court. Prior to getting its own building across the street, the Supreme Court was housed under the building in which our federal lawmakers gather, deliberate, and vote. The symbolic significance of this, of course, is that we govern ourselves. Our elected representatives, who are accountable to us, pass laws--judges do not. They simply judge whether an existing law has been violated in a particular case by particular parties.

      Yet we live in an age of judicial activism, or as some have called it, judicial tyranny. (19) Judges are striking down laws and writing new ones left and right, without precedent and without reason. For example, the Supreme Court decision Engel v. Vitale in 1962 attacked the longstanding tradition of school prayer, declaring that a voluntary, non-denominational prayer in a public school was unconstitutional. (20) The Court failed to cite a single precedent to justify its prohibition. "For 170 years following the ratification of the Constitution and Bill of Rights, no Court had ever struck down any prayer, in any form, in any location." (21) Things went downhill from there, in many different decisions. In 1973, the Roe (22) and Doe (23) decisions unleashed the abortion holocaust. In his dissent, Justice Byron White issued the famous assertion that the Court delivered "an exercise of raw judicial power ... an improvident and extravagant exercise of the power of judicial review." (24) Now the courts are tampering with the very nature of marriage as a union between man and woman. (25)

      The Founding Fathers knew the dangers of a court system that would try to take control of the rest of the government. Thomas Jefferson wrote:

      [T]he germ of dissolution of our federal government is in the constitution of the federal judiciary ... working like gravity by night and by day, gaining a little to-day and a little to-morrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.... (26) In the minds of the Founders, the legislative, executive, and judicial branches all interpret the Constitution. "[E]ach of the three departments has equally the right to decide for itself what is its duty under the Constitution, without any regard to what the others may have decided for themselves under a similar question." (27) In other words, the President and the members of Congress pledge to uphold the Constitution, not the Court's opinion of the Constitution. (28) Little by little, Americans today are waking up to judicial tyranny, and are calling for a change. The legal profession plays a crucial function in assisting that awakening. The vital way that citizens can facilitate the change, of course, is to take an active and informed role in the elections of those who take part in appointing judges (that is, the President and the senators). Citizens should make the candidate's judicial philosophy a key element of consideration.

      Citizens should also be informed that there exists a remedy precisely for judicial tyranny, found in the provisions of the Constitution. Article III of the Constitution outlines the structure of the federal judiciary. That article states: "The judicial Power of the United States, shall be vested in one...