Life Matters

Relatively few Americans understand the actual nature of abortion law in the United States. Many do know that the Roe v. Wade decision authorized abortion throughout the nation. Still, beyond that, there is mass confusion as to when it is approved, what conditions are legally necessary for the abortion to take place, etc.

Even more specifically, few realize Roe was joined by a companion decision, Doe v. Bolton, and it is this quiet, unexamined companion decision which authorizes a physician the absolute right to end the child's life whenever the abortionist feel appropriate.

Due to garbled and ideological media coverage, many Americans think that the abortion issue is simply a matter of women's rights. But so much more was changed by that decision. When the court authorized the ending of that child's life, for that is what an abortion does, it had to confirm who was to do the killing.

Radical feminist groups had demanded the right to have, and even perform abortions at their discretion and at any time in pregnancy. The same ideological groups asserted that this was a constitutional right because of their right to control their own body.

But Justice Blackmun was clear, he was not giving women that right. She must have the permission and direct involvement of a professional that would kill the child. And that professional baby killer was to come from an existing profession which up until that time had sworn never to kill a child or any vulnerable human being within their care.

The medical professional and that profession alone, was authorized and approved as legal killers of vulnerable children in the United States of America.

And they could do so whenever they - and they alone - felt.

This decision represented a dramatic assault on centuries of civil society and medical ethics. A doctor had sworn that to participate in their profession that they would never kill or intentionally harm a vulnerable patient in their care. The Hippocratic Oath then needed to be dismissed for Roe v. Wade to take affect. This unlimited license to kill at discretion was then explicitly granted to physicians through the Doe v. Bolton decision.

The implications of discarding the Hippocratic Oath are now sweeping through our culture, and killing medicine has become a standard procedure. Doctor killing of the disabled became effective in Canada in March, 2021. Canadian doctors are even authorized to kill the mentally disabled.

In California, this license to kill has now begun to prohibit any dissent or alternative medical treatments. State Senate Bill 380 will require a physician to support and immediately hand their vulnerable patient to a termination doctor, should be attending physician feel killing is an inappropriate treatment for the request at hand. The conscience rights of excellent and effective doctors will now be removed in the name of unfettered medical killing. Additionally, Assembly Bill 705 would prohibit religious, medical institutions, or even hippocratic minded medical hospitals from having policies against terminating patients.

AB705 will push for such institutions to accommodate, approve and facilitate the killing if any physician they are employing so chooses. This new doctor's 'right to kill' has become a doctor's and the medical profession's duty to kill.

Roe v. Wade did much more than authorize human abortions in America. Roe v. Wade and Doe v. Bolton unleashed medical killing on our culture. This terminator role for doctors has happened in the past, and it has never ended well.

Contemporary media as well as the leadership of the Democrat Party have become incredibly aggressive now that the party controls all levels of the federal government. There is apparently a conscious decision to simply use that newly grasped authority to 'declare as law' those measures which have previously failed. The expectation is that an accommodating media will simply echo the 'establishment of these precious new rights' and demand acquiescence. This enactment of dead provisions appears to be an essential part of progressives political hegemony. Legally and culturally speaking, it is making law by proclaiming a 'Zombie Apocalypse'. Measures which were dead and defeated are simply dead no longer.

In this episode of Life Matters, Commissioner Johnston again interviews Douglas Johnson, Federal Legislative Director Emeritus of the National Right to Life Committee as he explains how another intentional falsehood is being put forward by the abortion industry and its advocates. They are seeking to revive a long-dead proposal to amend the Constitution - the Equal Rights Amendment.

The Constitution is very clear that amendments may be offered but they must first pass through approval by two-thirds of the state legislatures. When first proposed in the 1970s, the ERA never did get the necessary two-thirds of the states approval, and in fact, when it was realized that the ERA would enshrine abortion in the language of the Constitution, many states rescinded their previous approval. Even when attempted again in the 80s the effort failed.

Roe v. Wade had never actually drawn from the Constitution. It made up an abortion right from the 'emanations from the penumbra' (a shadow) of the Constitution.

Now, with abortion support in the White House and in both houses of Congress, the strategy has changed and their desire is simply to proclaim that the ERA never died, that there are no limits placed on its passage, and their goal is simply to proclaim it a fiat accompli - that the Equal Rights Amendment is law. They have great hope that the media will simply repeat this clearly false view of the Constitution and its amending.

This attempt to create a "walking zombie" of law should be humorous on its face, but sadly there are many naïve and committed ideologues who believe that if they want something they can simply proclaim it to be true, and the dominant media culture will affirm that. Their hope is that natural opponents can simply be silenced!

These battles for objective truth and reality do indeed impact our laws. It is crucial that conscientious individuals be ready with the facts to dispel the myths which are so often used to bring about unjust laws. Just such objective facts will be necessary in order to finally bury the zombie known as the ERA.

In this episode, Commissioner Johnson discusses the expansion of medical killing via assisted suicide and euthanasia.

The Roe v. Wade and Doe v. Bolton decisions of 1973 did not merely authorize human abortions but specifically directed that only physicians should be involved in these killings. That meant that the medical profession was changed from being a profession sworn only to help and care for and to comfort if they could not cure, but never to kill or in any way harm their patients.

With the adoption of Roe v. Wade and Doe v. Bolton, the medical profession is dramatically altered and medical killing was legalized in the United States for the first time.

The expansion of medical Killing has continued and has now swept around the world as a standard form of medical practice. Brian is joined by Alex Schadenburg, Director of the Euthanasia Prevention Coalition. Mr. Schadenburg is based in Canada. The Canadian government is now requiring that anyone involved in comfort care or other forms of pain management and palliative care also be involved directly in intentional medical killing.

This expansion of the euthanasia movement has also crept into California where assisted suicide has been legalized. However, a new bill, SB-380, would now require a conscientious doctor who does not believe the patient should be put down, to expedite the process nevertheless and deliver the patient to a killing physician. This removal of a conscience clause provision for physicians will mean that the profession is bound in its commitment to kill. The window for the terminal diagnosis will also be reduced to fifteen days in some circumstances.

SB-380 has not yet been heard, and all pro-life individuals in California are urged to contact their state senators and assembly members urging opposition.

In this vital episode, Commissioner Johnston examines how history is being directly attacked and rewritten at this very moment. This practice is the ongoing pattern of progressive, historical revisionism.

It also reflects a fundamental principle lost on most of us in our day-to-day lives: what has preceded us has lead to this moment. A proper understanding of history will empower us to address this moment in which we live.

Brian ties this to an understanding of the abortion culture surrounding us, and even more importantly, to what truly happened in the Roe v. Wade and Doe v. Bolton decisions. Many Americans and even numerous pro-lifers do not fully understand the impact these decisions, nearly 50 years ago, have had on our present moment and how we are to address it.

Brian explains that our misunderstandings of history are not our fault. Many educational institutions, particularly in the United States, are under the sway of the John Dewey view of education, progressivism, and relativism.

In Europe, this had already taken place with the wide-spread adoption and excitement surrounding Hegel's view of history. History was considered matters of the past. But, "what is significant is that we are now going into the future. What truly matters is that these old things are left in the past and we now progress into a brave new world of promise." In this improved world, "the government is to bring about these courageous further steps of progress."

But this is a very distorted view of history. History is cumulative. History has led up to this very moment.

In the Spielberg movie, Amistad, the lead Mende tribesman was brought before the United States Supreme Court. He was asked what he wanted to do and why he was doing it His answer not only summed up their decision but summed up a view and understanding of history that all of us should share: "My ancestors lived so that I might stand in this moment."

This incisive understanding of history and respect for the facts of history will also help us in understanding our moment, in understanding our present battles.

What happened in The Civil War

Brian then takes a deep dive into exploring one of the most common misunderstandings of Abraham Lincoln, his commitments, and the real nature of the Civil War. Many think that the Civil War was about suppressing the slave states rights to own slaves. But that is not the case.

In fact, Lincoln's position on states rights was exactly the opposite. Lincoln was fighting for the right of FREE states to exercise their duty within their jurisdictions to protect the lives of those under their authority. Once that ability was established, then the Senate could consider what laws ought to apply to all the states. That would eventually happen in the13th and 14th amendments, but it was not possible if free states were not even allowed to abolish slavery!

Several actions by the federal government were actually preventing the rights of the free states to be exercised within their borders. The Fugitive Slave Law, the Kansas Nebraska Act, and the Dred Scott Decision, all infringed on the rights of free states to exercise their duty under natural law to protect those who could not protect themselves (the same basis that individual states would later use to ban abortion).

Even though free states could say that they were free states, according to the federal government, a slave was never legally free until he or she crossed the Canadian border. The most odious of these offenses against free states is the blatantly pro-slavery Dred Scott Decision, which explicitly said that states could not ensure freedom or protect the lives of slaves inside their jurisdictions.

This was actually the same action of the Roe v. Wade and Doe v. Bolton decisions: proclaiming it as federal law that one could own another human being, and that one was free to kill a human being whom they claim to own. States were not free to ban this principle of deadly ownership of human beings.

Roe and Doe specifically prohibited pro-life states from enacting their laws. This was a direct assault on the nature of the Constitution and the authority of the States. In addition, it assumed the authority of the United States Senate to both speak for, and then impose federal law on the several states. The nature of the United States Constitution was trampled by the Dred Scott Decision in slavery, was trampled by Roe and Doe and by the abortion culture which they unleashed.

I want to stop for a moment and honor a friend of mine and a friend of the California ProLife Council.

Now, I know some of our supporters are not Conservatives. I, more than most, understand that the ProLife Movement is very diverse. And that means that some of you may not be Rush Limbaugh fans. If that's you, please bear with me. I believe you need to know that the dominant media's presentation of who Rush Limbaugh was, is false; very, very false.

And if you have been a supporter of the right-to-life for any time, you already know that the dominant media – the drive-by-media - is regularly false and misleading.

They most certainly had it in for Rush Limbaugh.

Don't believe them.

Rush Limbaugh was a friend of mine. It's not that I knew him well, or even hung out with him. But I did work with him on several occasions. He knew me, and we were cordial. We had many friends in common.

First you should know that, in many ways he really was a gentle and "harmless fuzzball!" - his common self-description.

I first met Rush on October 5, 1986, in the studios of KOVR-13, in Sacramento. Jack Kavanaugh, the host, had aligned us as a debate team against the ACLU and Planned Parenthood. The topic was the pending parental notification law in the state legislature.

I can track that exact date because Eugene Hassenfuss, an employee of the CIA, was just shot down over Nicaragua. He was ferrying supplies to the Contra rebels and this dominated the news.

There were lengthy commercial breaks through the hour. Rush had strong thoughts on these events, and I listened intently. I agreed with him (I personally hate Marxism for a number of reasons) but I explained that on public-policy discussions I was constrained to a very defined folio, the right-to-life. Rush nodded in agreement and we discussed certain aspects of the coming debate.

Rush was never hesitant to share his point of view. But contrary to his image, he was actually a very intense and careful listener. And a very kind and warm man.

Over the years Rush donated many items to the California Prolife auction and sent kind supportive notes. His commitment to life was deep and if anything, only grew deeper. A common hero we both shared was William F. Buckley (WFB). Years before, I began reading Buckley's National Review because often in his column, Notes and Asides, Buckley would write jokes in Latin and without translation! (Finally, something fun I could attempt to translate!)

But there is something deeper that William F. Buckley, Rush Limbaugh, you, and I, all share. That is a commitment to objective reality, to self-evident truth. We share a commitment to stand as our founding fathers stood, looking for those self-evident truths, in "the laws of nature and of nature's God." This is such a vital and down-to-earth premise for all of society. And as I've said many times, "If Natural Law does not exist, there is no Right to Life."

Rush made a point to address himself to objective reality. I believe this was the key to his success. He regularly called himself, "The Mayor of Realsville". People grow tired of political games and even though Rush was clearly delving into the realm of politics and policy, he was not playing political games. He was dealing with objective facts, not 'politicized' issues.

In terms of American cultural personae, I can think of no greater chasm than in the cultural demeanors of William F. Buckley and Rush Limbaugh. The polysyllabic, Ivy League raconteur and the Cape Girardeau down-home, college drop out, son of the show-me state. Rush and WFB were cultural worlds apart, but like all great Americans, committed to the deeper, transcendent, inspired values America's founders have handed off to all of us.

Many listeners were deeply offended by the 'caller-abortions' that Rush would occasionally employ. He would stop in the middle, but usually the beginning of a caller's question and declare, "I'm choosing a caller abortion." He would then hang up, and you would hear the sound of a vacuum cleaner and a flushing toilet. Often the caller was a supporter, but still he insisted he could do it if he wanted to. It didn't matter.

Many were offended by this. "But Rush, you are hanging up on supporters." "So, it's my choice!" And the pro-abortion crowd were the most upset. But unless you shock people, they often don't understand or get your point.

"Why are you upset about me dismissing a unique person on a phone call, without even asking or informing them?" "Why is it offensive to dismiss a call, but you are not offended to dismiss unique lives, and to do so without any other consideration?" Why is choosing to abort a phone call offensive, but choosing to abort human beings not? What's wrong with this culture?

Talent returned to God. Thank you Rush, and God bless you!

In this episode of Life Matters, Commissioner Johnston outlines the incredible power that language has over our thoughts and perceptions.

Brian had studied Comparative Linguistics at Sonoma State University and explains a language phenomenon that many of us don't often think about. Just as we are unable to comprehend a completely foreign language, there is the related inability to think about or understand ideas for which we have no words.

This principle also extends to deeper implications - that the meaning of words themselves can be changed simply by their usage in society. Those who control the tools of communication - major media and academic circles, are given great control over the use of language. They often create new rules and usages.

George Orwell eloquently illustrated the phenomenon in his book 1984. He had written an epilogue explaining how language is used to control the populace in collectivist-socialist cultures. Orwell's epilogue is widely available and very recommended. It is entitled, "The Principles of Newspeak".

Newspeak is the method by which 'Ingsoc', ideas of the new English socialism, would be imparted and reinforced. It resulted in the inability to think of individual freedom or previous forms of government. The meanings attached to those concepts would simply be lost.

Brian further comments on the details of this phenomenon as illustrated in Comparative Linguistics.

The language principle is known as the Sapir-Whorf hypothesis. Brian had studied the comparative dialects of the Pomo Indian Tribe of Sonoma, Lake, and Mendocino Counties. Many years earlier, Edvard Sapir had studied the languages of the Aleut and Inuit tribes (formally called Eskimos). Benjamin Lee Whorf studied the Hopi Indian dialects. Each made observations regarding vocabulary (Sapir) and verb tense (Whorf). They concurred that the different aspects of language directly impacted how the language-user viewed the world around them.

Brian explains how the right to life, abortion and euthanasia debates are directly impacted and even determined, by the language that is used.

Obviously, abortion advocates have intentionally changed the vocabulary (choice - a concept - is used to replace the specific action of dismemberment and disposal of the human child). And this is but one example. But in a larger sense, the use of the language and the presumptions that language carries, have also quietly induced pro-life individuals to engage in the debate of ideas, but only using the premises that our current culture has made popular.

Many pro-lifers feel a deep need to debate the relative merits and arguments of the Roe v. Wade decision. But as Brian, pro-life judges, and even pro-abortion judges, have pointed out, Roe versus Wade is completely illogical in its premises, in its pattern of logic, and in its conclusions.

Again, even Justice Ginsburg, the most-radical pro-abortion Supreme Court Justice has declared that Roe v. Wade and Doe v. Bolton, have not granted women a right to choose or the right to do what they wish with their bodies. Justice Blackmun was explicit that Roe does not create an unlimited right to an abortion. Yet abortion for 'choice' is still considered its result.

Brian's point is that it is the companion decision, Doe versus Bolton, which explicitly sets aside the rambling confusion regarding pregnancy and culture and history (the actual content of Roe). It is Doe versus Bolton that explicitly allows doctors to kill, based solely on their own personal opinion, and without any further accountability.

Doe is the enactment 'provision' of Roe v. Wade. And by making the physician (not the woman) the designated agent and ultimate decision maker, it has brought a direct attack against the very premise of the culture in which we live, Western Civilization.

Western Civilization holds the premise that human beings are more than merely animals. One profession was dedicated to always caring for and protecting the unique and vulnerable human person - the medical profession. Throughout Western Civilization doctors have always sworn to never harm or kill.

It is in Doe v. Bolton that the medical profession is explicitly empowered to kill and directed to do so at their own discretion.

Western Civilization a victim in the Roe and Doe companion decisions - they have done even more than simply authorize the killing of innocent babies. An unrestrained killing profession has now become an accepted part of our society.

But language has prevented many from seeing or even thinking about what that means.

In this episode of Life Matters, Brian Johnston explains how much of abortion rhetoric and abortion law is actually based on falsehoods.

Pro-life individuals are aware of the absurd assertion that, 'there is no human being killed,' when a baby dies in a human abortion. But those familiar with objective facts and self-evident truths know that this is simply an assertion of ideology, separated from objective science, and biological fact. When looked at objectively and dispassionately, it is strikingly clear that in a human abortion, the life of a unique human being is taken.

The actual nature of the Roe v. Wade and Doe v. Bolton decisions, which together legalized unlimited abortion in the United States, is rarely examined in any depth. Brian's upcoming book: The Evil Twins Roe and Doe: How the Supreme Court Unleashed Medical Killing, is a deep dive into the objective facts and clear statements of both cases, which the dominant media culture and even many pro-life individuals refuse to examine.

In this episode of Life Matters, Commissioner Johnston interviews Douglas Johnson, Federal Legislative Director Emeritus of the National Right to Life Committee as he explains how another intentional falsehood is being put forward by the abortion industry and its advocates. They are seeking to revive a long-dead proposal to amend the Constitution - the Equal Rights Amendment.

The Constitution is very clear that amendments may be offered but they must first pass through approval by two-thirds of the state legislatures. When first proposed in the 1970s, the ERA never did get the necessary two-thirds of the states approval, and in fact when it was realized that the ERA would enshrine abortion in the language of the Constitution, many states rescinded their previous approval. Even when attempted again in the 80s the effort failed.

Now, with abortion support in the White House and in both houses of Congress, the strategy has changed and their desire is simply to proclaim that the ERA never died, that there are no limits placed on its passage, and their goal is simply to proclaim it a fiat accompli - that the Equal Rights Amendment is law. They have great hope that the media will simply repeat this clearly false view of the constitution and its amending.

This attempt to create a "walking zombie" of law should be humorous on its face, but sadly there are many naïve and committed ideologues who believe that if they want something they can simply proclaim it to be true, and the dominant media culture will affirm that. Their hope is that natural opponents can simply be silenced!

These battles for objective truth and reality do indeed impact our laws. It is crucial that conscientious individuals be ready with the facts to dispel the myths which are so often used to bring about unjust laws. Just such objective facts will be necessary in order to finally bury the zombie known as the ERA.

Is this episode of Life Matters Brian interviews National Right to Life President, Carol Tobias. They discuss in depth the dramatic change to the culture of Washington D.C. in the agenda of the Biden/Harris administration.

President Biden has made a commitment to undo all of the pro-life gains won by President Donald Trump. But in addition to that, Biden intends to go much further. Up until his decision to run for president, Senator Joe Biden had supported the Hyde amendment which prohibits federal funds from being used for abortion or to promote abortion.

Biden's dramatic decision to flip-flop on this final pro-life issue, places him firmly in the camp of radical abortion advocates. He now supports unlimited advocacy and funding for all abortions.

In addition, the famous Mexico City policy, a policy of the Ronald Reagan era, has now been rescinded by the Biden administration. It is critical to note that the Mexico City policy which deals with the international funding of abortion and his promotion through various UN and other outlets, prohibited organizations from forcing abortion ideology onto various countries around the world. These countries, formerly referred to as "third world," are often blackmailed into both accepting abortion into their laws and culture, but also funding agencies which promote abortion throughout their population.

"Population control" advocates use abortion as one more form of birth control and are more than willing to use the power of the United States government and the United Nations and multiple billions of dollars in leverage, to force nations to go against their traditional values and religious sentiments if they are to except other foreign aid. This is a form of abortion colonialism.

Carol speaks at length about other issues that could bring great change should they be adopted. The possibility of court packing, i.e. appointing a number of new pro-abortion justices, creating new states out of the District of Columbia and Puerto Rico - each of these acts would give the Democrat party two new United States senators cementing abortion policy into federal law for decades to come.

Carol also discusses the resurrection of the long dead issue, Equal Rights amendment. Constitutionally speaking, the attempt to amend the constitution with ERA failed in the 70s and a second attempt to revive it in the 80s came to nought. (Brian discusses this in much greater detail in his upcoming interview with Douglas Johnson).

Pro-life advocates will need to be particularly attentive to action items that impact the federal government contacting their representatives in raising their voice as the new radically pro-abortion Biden administration seeks to implement itself on our nation. It is our job to raise our voices on behalf of those that cannot speak for themselves

• "Roe v. Wade has no foundation in either law or logic; it is on a collision course with itself."
• Edward Lazarus, a former law clerk to Roe's author, Justice Harry Blackmun, who writes:

As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather. . . . .

What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent. ...

The proof of Roe's failings comes not from the writings of those unsympathetic to women's rights, but from the decision itself and the friends who have tried to sustain it. Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms.7

Ten Legal Reasons to Condemn Roe v. Wade 1. The umpires are there to call balls and strikes. In real baseball they cannot be players as well. The Roe Court far exceeded its constitutionally designated legal purpose and authority.

Under the U.S. Constitution, the power to make laws is vested in Congress and retained by state legislatures. Elected representatives are the proper 'makers of law.' These elected officials then answer to the voters. The role of the judiciary in constitutional review is to determine if the law being challenged infringes on a constitutionally protected right. It is not the role to then somehow come up with new laws of their own tastes and inclination. Justice O'Connor, quoting Chief Justice Warren Burger: Irrespective of what we may believe is wise or prudent policy in this difficult area, "the Constitution does not constitute us as 'Platonic Guardians' nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, 'wisdom,' or 'common sense.'"8 In Roe v. Wade and its companion, conjoined case, Doe v. Bolton, the Court struck down criminal laws of Texas and Georgia which outlawed certain abortions by finding that these laws (and those of the other 48 states) violated a "right of privacy" that "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." But such a right is nowhere mentioned in the Constitution nor even derivable from values embodied in it. It was a preference to have such a right and Justice Blackmun's writings actually set themselves to devise the 'rules' that would then 'emanate' from such a preferred right. He simply made up new, substitutionary laws and imposed them on all the states! In his dissenting opinion in Doe v. Bolton, Justice Byron White, joined by Justice William Rehnquist, wrote: I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers ... and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 states are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court. 2. The Roe Decision seriously misrepresents the history of medicine and society's view of abortion. Justice Blackmun admitted to a serious fascination with the medical profession. Later in Doe v. Bolton we will see an almost passionate commitment to 'protect the physician from the cloud of possible prosecution.'

The Mayo Clinic, for whom he served as legal counsel, admits to Blackmun's unique obsession with the medical profession. Proceedings of the Mayo Clinic Francis Helminski, J.D. Volume 69, Issue 7, p 698-699, July 01, 1994

Although three previous justices of the United States Supreme Court have had formal medical training, none has had more influence on medicine than Justice Harry A. Blackmun. Blackmun, a mathematics major at Harvard College, considered medical school but instead chose legal training. After becoming familiar with the legal work of the Mayo Clinic while practicing with a Minneapolis firm, he was internal legal counsel for the clinic from 1950 to 1959. Blackmun's work contributed to the development of the clinic, especially in the establishment of Rochester Methodist Hospital. As a Supreme Court Justice, Blackmun's concern for medicine was evident in many of his judicial opinions, including Roe v Wade and Regents of the University of California v Bakke. In Roe, he rested much of the constitutional foundation for legalized access to abortion on the integrity of the physician-patient relationship.

The apparent purpose of the Roe opinion's long historical excursion is to create the impression that abortion had been widely practiced and unpunished until the appearance of restrictive laws in the prudishly-Victorian 19th Century. One example is adequate to show the distortion of Justice Harry Blackmun's version of history.

He must overcome a huge hurdle in the person of Hippocrates, the "Father of Medicine," and his famous Oath which has guided medical ethics for over 2,000 years. The Oath provides in part: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion."9 This enduring standard was followed until the Roe era and is reflected in Declarations of the World Medical Association through 1968: "I will maintain the utmost respect for human life, from the time of conception. ..."10 But Justice Blackmun dismisses this universal, unbroken ethical tradition as nothing more than the manifesto of a fringe Greek sect, the Pythagoreans, to which Hippocrates is alleged to have belonged!

3. Roe wrongly characterizes the common law of England regarding the status of abortion. The Court's language in Roe offers a plastic analysis and conclusion – "it now appears doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus" – is patently false on its face. The Common Law drew its principles from Natural Law. Until quickening there were no objective signs that a human life was present. Quickening, the moment that movement can be detected, was considered objective scientific fact that the fetus was indeed definitively alive.11 William Blackstone's Commentaries on the Laws of England (1765-1769), an exhaustive and definitive discussion of English common law as it was adopted by the United States shows that the lives of unborn children were valued and protected, even if their beginning point was still thought to be "quickening" rather than conception:

Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as the infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb ... this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.12 Until well into the 19th century, it was assumed that a child's life may not begin – and certainly could not be proven to have begun to satisfy criminal evidentiary standards – prior to the time the child's movements were felt by the mother ("quickening"), at approximately 16-18 weeks' gestation. The science of the time was being applied to the enforcement of the law.

After the invention of the modern microscope (1836) and the widespread, objective scientific revelation that mammalian life begins at conception, English law then increased the penalties for killing a child before quickening. Consistent with the principle that the law needs to follow objective, observable facts, in 1861 Parliament passed the Offences Against the Person Act. This law extended protection of the life of the child throughout pregnancy. This law was gradually whittled-away starting in the 1980's. But the Act continued to protect pre-born life in Northern Ireland until 2019.20

The Roe Court looks at the distinction in early common law concerning abortions attempted before or after "quickening," wrongly. It falsely assumes that the law allowed women great latitude to abort their children in the early months of pregnancy. This is like saying people had an unspecified right to hack websites before such acts were criminally prosecuted.

The law is designed to enforce known and demonstrable crimes. A law could not protect a human being it did not know to be alive. But as demonstrated by the Offences Against the Person Act, when the facts are known, then the law can be enforced. 4. In Roe, the Court downplays and distorts the purpose and legal weight of state criminal abortion statutes that had been deliberated and passed by the several states In the 19th Century, in virtually every state and territory, laws were enacted to define abortion as a crime throughout pregnancy. They contained only narrow exceptions, generally permitting abortion only if necessary to preserve the mother's life. The primary reason for stricter abortion laws, according to their legislative history, was to afford greater protection to unborn children. This reflected a heightened appreciation of prenatal life based on new medical knowledge. (See the Offenses Against the Person Act in the U.K.)

Dr. Horatio R. Storer… etc is significant that the medical profession spearheaded efforts to afford greater protection to unborn lives than had been recognized under the common law's archaic "quickening" distinction.

The existence of such laws, and their clear purpose of protecting the unborn, rebuts the Court's claim that abortion has always been considered a liberty enjoyed by women. These laws show broad acceptance of the view that the life of an unborn child is valuable and should be protected unless the mother's life is at risk. In that case, of course, both mother and child were likely to perish, given the primitive care then available for infants born prematurely.

How does the Court get around the impressive body of laws giving clear effect to the state's interest in protecting unborn lives? It attempts to devalue them by ascribing a completely different purpose: the desire to protect the mother's life and health from a risky surgical procedure. Applying the maxim "if the reason for a law has ceased to exist, the law no longer serves any purpose," the Court declares that abortion is now "safer than childbirth." Therefore, laws banning abortion have outlived their purpose.

5. A privacy right to decide to have an abortion has no foundation in the text or history of the Constitution.

Roe v. Wade locates a pregnant woman's "constitutional" right of privacy to decide whether or not to abort her child either "in the Fourteenth Amendment's concept of personal liberty ..., as we feel it is, or ... in the Ninth Amendment's reservation of rights to the people."

The Court does not even make a pretense of examining the intent of the drafters of the Fourteenth Amendment, to determine if it was meant to protect a privacy interest in abortion. Clearly it was not. The Fourteenth Amendment was not intended to create any new rights, but to secure to all persons, notably including freed slaves and their descendants, the rights and liberties already guaranteed by the Constitution.

Several rhetorical devices are used to mask this absence of constitutional grounding. The Court mentions several specifically enumerated rights which concern an aspect of privacy, for example, the Fourth Amendment's "right of the people to be secure in their houses, papers, and effects, against unreasonable searches and seizures." However, the Court fails to connect these to the newly found "right" to abortion, because no logical connection exists.

Justice Blackmun attempts to graft abortion onto the line of decisions recognizing privacy/liberty rights in the following spheres: marriage (Loving v. Virginia, striking down a ban on interracial marriage); childrearing (Meyer v. Nebraska and Pierce v. Society of Sisters, upholding parental decision-making regarding their children's education); procreation (Skinner v. Oklahoma, finding unconstitutional a state law mandating sterilization of inmates found guilty of certain crimes); and contraceptive use by a married couple (Griswold v. Connecticut). Certainly marriage, and building and raising a family are fundamental aspects of human life that predate human laws and nations. They are implicit in the concept of liberty and the pursuit of happiness, though even these rights are subject to state limitation, such as laws against bigamy, incest, and child abuse and neglect.

But abortion does not fit neatly among these spheres of privacy. It negates them. Abortion is not akin to childrearing; it is child destruction. A pregnant woman's right to abort nullifies the right to procreate upheld in "Skinner." He no longer has a right to bring children into the world, but only a right to fertilize an ovum, which his mate can then destroy without his knowledge or consent. The fear of government intruding into the marital bedroom by searching for evidence of contraceptive use drove the Griswold Court to find a privacy right for couples to use contraception in the "penumbras, formed by emanations from" various guarantees in the Bill of Rights. But, however closely abortion and contraception may be linked in purpose and effect, they are worlds apart in terms of privacy. Abortions do not take place in the sacred precincts of marital bedrooms, preventing them does not require investigation of private sexual behavior, and they involve personnel other than the spouses.

A "privacy right" large enough to encompass abortion could also be applied to virtually any conduct performed outside the public view, including child abuse, possession of pornography or using illicit drugs. The liberty interest to be protected from state regulation is never really defined in Roe. Instead the Court describes at some length the hardships some women face, not from pregnancy, but from raising children:

Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.

By this reasoning, one might argue that Roe's liberty encompasses ridding oneself of unwanted toddlers! Ordinarily, the defense of rights requires us to forgo lethal methods and use means likely to create the least harm to others. We may not, for example, surround our house and yard with a high voltage fence to deter trespassers. This principle is upended in the abortion context. Adoption, for example, would effectively eliminate all the "hardships" of raising "unwanted" children by non-lethal means.

6. Although it reads the 14th Amendment extremely expansively to include a right of privacy to decide whether to abort a child, the Court in Roe adopts a very narrow construction of the meaning of "persons" to exclude unborn children.

Much is made of the fact that "person" as used elsewhere in the Constitution does not refer to unborn children when, for example, discussing qualifications for public office or census-taking. That point proves nothing. The Supreme Court has held that corporations are "persons" within the meaning of the 14th Amendment and they are not counted in the census, nor can a corporation grow up to be president.

The Roe Court also ignored the clear and uncontested biological evidence before them that individual human lives begin at conception: "We need not resolve the difficult question of when life begins." This is question determined by science, not philosophers or theologians or politicians. But while seeming to sidestep the question, the Court in fact resolved the question at birth, by allowing abortion to be legal throughout pregnancy. In the same vein, the Court refers to the unborn child as only a "potential life" (indeed, an actual life) from the moment of his or her conception.

The Roe opinion states that a contrary finding on "personhood" would produce the opposite result (presumably foreclosing the mother's privacy right to an abortion). One does not have to be a "person" in the full constitutional sense, however, for a state to validly protect one's life. Dogs can be protected from killing although they are not "persons."13 And under the Endangered Species Act (ESA), people are prosecuted, fined and jailed for acts that may harm creatures, such as sea turtles, that are not "persons" in the full constitutional sense. Sea turtles are protected not only after they are hatched, but even while in the egg. In fact, each sea turtle egg removed from its nest constitutes a separate violation under the ESA, regardless of whether the sea turtle egg contained an embryo that was alive or "quick" or "viable" or even already deceased at the time of the taking.

7. The Roe Court assumed the role of a legislature in establishing the trimester framework.

Roe holds that in the first trimester of pregnancy, the mother's "privacy interest" in an abortion trumps state regulation. From the end of the first trimester to the child's "viability" – which the Court presumed to be no earlier than 26 weeks – the state can regulate abortion practice only in ways reasonably related to advancing the mother's health. In the final trimester, the state – in the interest of protecting the "potential life" of the child – can regulate and even proscribe abortion, except where necessary to preserve the mother's "life or health." Health (see point 8 below) is the exception that swallows the rule.

Pre-decision memoranda among members of the Roe Court acknowledged the serious flaw in establishing arbitrary, rigid time frames. Justice Blackmun himself admitted it was arbitrary.14 A reply memorandum from Justice Potter Stewart stated:

One of my concerns with your opinion as presently written is ... in its fixing of the end of the first trimester as the critical point for valid state action. ... I wonder about the desirability of the dicta being quite so inflexibly "legislative."

My present inclination would be to allow the States more latitude to make policy judgments. ..."15

Geoffrey R. Stone, a law clerk to Justice Brennan when Roe was decided, was recently quoted as saying: "Everyone in the Supreme Court, all the justices, all the law clerks knew it was 'legislative' or 'arbitrary.'"16

Justices O'Connor, White and Rehnquist denounced the arbitrary trimester framework in O'Connor's dissenting opinion in Akron:

[There] is no justification in law or logic for the trimester framework adopted in Roe and employed by the Court today. ... [That] framework is clearly an unworkable means of balancing the fundamental right and the compelling state interests that are indisputably implicated.

The majority opinion of Justice Rehnquist in Webster v. Reproductive Health Services states:

The key elements of the Roe framework – trimesters and viability – are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle. ... 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. As Justice White has put it, the trimester framework has left this Court to serve as the country's "ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States."

8. What Roe gives, Doe takes away.

Many Americans believe that abortion is legal only in the first trimester (or first and second trimester). Many pollsters and media outlets continue to characterize Roe v. Wade as the case which "legalized abortions in the first three months after conception."17 In a recent television appearance, NOW's former president Patricia Ireland falsely claimed that "thirty-six states outlaw abortion in the third trimester."

As noted above, under Roe state laws banning late-term abortions must contain a "health" exception. Health is defined in Roe's companion case, Doe v. Bolton, as including "all factors — physical, emotional, psychological, familial, and the woman's age — relevant to the wellbeing of the patient. All these factors may relate to health." This definition negates the state's interest in protecting the child, and results in abortion on request throughout all nine months of pregnancy. The fact that the Court buries its improbably broad definition of health in the largely unread opinion in Doe v. Bolton makes it no less devastating.

9. The Court describes the right to abortion as "fundamental."

The Supreme Court has found certain rights fundamental. Expressed or implied in the Constitution, they are considered "deeply rooted in the history and traditions" of the American people or "implicit in the concept of ordered liberty," such as the free exercise of religion, the right to marry, the right to a fair trial and equal protection. A state law infringing on a fundamental right is reviewed under a rigorous "strict scrutiny" standard. In effect, there is a presumption against constitutionality. The Roe Court claims abortion is fundamental on the ground that it is lurking in the penumbras and emanations of the Bill of Rights or the 14th Amendment, along with privacy rights like contraceptive use. It's ludicrous to claim abortion is deeply rooted in American history or traditions or that our governmental system of "ordered liberty" implicitly demands the rights to destroy one's child, but it was an effective way to foreclose state regulations of abortion. The strict scrutiny test was later abandoned in Casey.

10. Despite the rigid specificity of the trimester framework, the opinion gives little guidance to states concerning the permissible scope of abortion regulation

Abortion decisions that followed Roe chronologically have not followed Roe jurisprudentially. Many decisions have five separate opinions filed, often with no more than three justices concurring on most points. Eight separate opinions were filed in Stenberg v. Carhart (which effectively nullified laws in over two dozen states banning partial-birth abortion).

The 1992 decision in Planned Parenthood of Southeastern Pa. v. Casey could have resulted in Roe's reversal. The Casey Joint Opinion (there being no majority opinion) comes close to conceding that Roe was wrongly decided:

We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and, coming as it does after nearly 20 years of litigation in Roe's wake we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding.

Instead they jettisoned Roe's trimester framework and standard of legislative review, but kept Roe alive: Chief Justice Rehnquist's dissent in Casey, in which he is joined in part by Justices White, Scalia and Thomas states:

Roe decided that a woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe decided that abortion regulations were to be subjected to "strict scrutiny," and could be justified only in the light of "compelling state interests." The joint opinion rejects that view. ... Roe analyzed abortion regulation under a rigid trimester framework, a framework that has guided this Court's decision-making for 19 years. The joint opinion rejects that framework. ...

Whatever the "central holding" of Roe that is left after the joint opinion finishe[d] ... Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.

And later in that dissent:

Roe v. Wade stands as a sort of judicial Potemkin village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent. But behind the façade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion. Neither stare decisis nor "legitimacy" are truly served by such an effort.

Roe makes no legal sense whatsoever. It is Doe v. Bolton, handed down the same day, and 'interlocked' by Justice Blackmun, it is Doe that explicitly authorizes medical killing, "without the shadow of possible prosecution."

Commissioner Johnston knows attorneys who are actively involved in the abortion debate and on both sides of the issue. Many assert a mastery and working knowledge of Roe v. Wade's intricacies. But honest lawyers will not make any such claim.

Perhaps what is more frightening, he knows many more commentators and reporters who will 'explain' the decision at length. The problem is, this 'well-known' decision cannot possibly be explained. It does not and cannot make sense.

Even liberal legal scholars like Alan Dershowitz,1 and Cass Sunstein,2 deny its ability to stand on its own merits. Progressive Professor Laurence Tribe is clear: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."3

Edward Lazarus was a Blackmun law clerk who "loved Roe's author like a grandfather." He wrote: "As a matter of constitutional interpretation and judicial method .... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."4

It is only in understanding this problem of Roe that one can see the real significance of its companion decision, Doe v. Bolton. The decisions were linked and released in tandem. In Doe, Justice Blackmun switches themes entirely. He does not focus on stages of pregnancy or the woman. He now focuses on the individual who is about to do the abortion. Doe v. Bolton, in many ways, is written for 'the doctor.'

The state's interest in protecting life is specifically downgraded. The Hippocratic tradition of never harming a human life: dismissed. At any time in pregnancy psychological and societal questions could be the determining factor. No physical medical conditions need be present. (Doe, 410 U.S. 191) Blackmun's definition of the 'health' of the mother in gauzy, 'gestalt' concepts, justified a deadly surgical act.

By 'combining it' with the confusing Roe decision, he cleans up what he quietly had admitted is an arbitrary, pregnancy-stages framework.5 In Doe he cuts through the fog. He makes the physician's opinion the arbiter of action.

Known feminist and abortion-advocate, Associate Justice Ruth Bader Ginsburg, has openly faulted the Court's approach for actually being, "about a doctor's freedom to practice his profession as he thinks best.... It wasn't woman-centered. It was physician-centered."6 It is this then, that is the real overarching issue in these decisions: legally-authorized, medical killing.

Pregnancy and abortion were confusedly and ham-handedly dealt with in Roe. But what is crisply and incisively granted to physicians in Doe is the right to use their profession to deadly effect and as they personally saw fit.

The quietly implemented, largely unexamined Doe decision is responsible for the implementation of America's abortion practices. Three thousand years of ethical guidance had protected the physician, vulnerable patients, and civilized society from the quiet, easy way out: simply kill the human being in question. The temptation to cover mistakes; save money; accommodate coercion; reduce workload on overworked medical staff; abet antsy heirs; cease careful pain management by simply ceasing the life; diminish populations of 'imperfect' dependent individuals; all of these utilitarian motives are easily implemented – and quietly so - once there is no external rule or oath to never use medicine to kill.

The Oath had served as the anchoring premise not only for medical doctors, but for society's view of 'unimportant' human lives entrusted to them.

We are now living with the ever-expanding implications of this casual and quiet dismissal of three millennia of medical ethics. As Justice Ginsburg ironically points out, this new, physician's 'right to choose' is actually the only definitive, conclusive aspect of the deadly, twin decisions, Roe v Wade and Doe v Bolton.

1.Dershowitz, Alan. Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford U. Press 2001): "Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)...."

2. Sunstein, Cass. Quoted by McGuire, New York Sun (November 15, 2005)

3.Tribe, Laurence "Roe v. Wade and the Lesson of the Pre-RoeCase Law". Michigan Law Review. 77 (7): 1724–48.

4. Lazarus, Edward. "The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell's Nomination Only Underlined Them, Findlaw's Writ (October 3, 2002).

5. Blackmun's personal note to fellow justices. Quoted in Woodward, Bob. "The Abortion Papers Archived June 14, 2008, at the Wayback Machine", Washington Post (January 22, 1989).

6.Bullington, Jonathan, (May 11, 2013) Justice Ginsburg: Roe v Wade not woman centered. Chicago Tribune

Brian Johnston is the Western Regional Director of the National Right to Life Committee. His new book, The Evil Twins: Roe and Doe; How the Supreme Court Unleashed Medical Killing will be published by New Regency Publishing and is scheduled for release on April 4, 2021. Pre-orders available at special, pre-order pricing at New Regency, on Amazon and at AuthorStock.

Mr. Johnston is available for comment and remote or in-person speaking (800) 924-2490)