There are TWO cases before the United States Supreme Court regarding murder by abortion set for argument next Monday, November 1, 2021 and the 2nd case on December 1, 2021. Let’s briefly review the facts of murder by abortion in Idaho.
First, abortion is not legal in Idaho simply because the Supreme Court of the United States asserted a constitutional “right” to abortion 48 years ago in Roe v. Wade. Courts don’t write law; they rather issue opinions on the laws passed by state and federal legislatures. After the Roe v. Wade decision in 1973, the Idaho legislature changed Idaho law and to this day specifically allows murder by abortion in state statute (Idaho Code).
So, the reason that 1,513 preborn children were murdered in only three of Idaho’s 44 counties (Ada, Twin Falls and Valley) in 2019 is because it is legal for mothers to kill their preborn children in Idaho, and so there are at least 5 businesses (also known as child sacrifice centers) where mothers avail themselves of the business service to kill their child.
Let me illustrate – in 2012 I was a jail chaplain at the Bonner County jail and counseled a new inmate who had just murdered his pregnant wife in Priest River. Jeremy Swanson was subsequently convicted of two homicides and was sentenced to TWO life sentences and is serving those life sentences in the Idaho Department of Corrections. One sentence is for murdering his wife Jennifer, and the other is for murdering their preborn child.
Had Jennifer paid an abortionist to kill her own child that same day, Idaho Code allows her to do that by prohibiting the prosecution of all murder by abortion with the consent of the mother. See Idaho Code 18-4016.
Will the Supreme Court reverse Roe?
The earnest hope of all pro-lifers for the last 48 years is that the Supreme Court would re-visit their decision in Roe v. Wade and reverse it. Pro-lifers have elected “pro-life” Republican presidents in the hope that their appointments to the court would change the equation. But here are the facts – the Supreme Court that decided Roe v. Wade was 6-3 appointed by Republican Presidents. The Roe decision was 7-2 that asserted a right to abortion and included 5 Republican appointees.
Since Roe, the Supreme Court has re-visited Roe in 40 other cases over the decades and has not once reversed it. In fact, they affirmed it yet again in a June 2020 decision. And through all of the years since Roe, the court has been dominated by Republican Presidential appointments. In fact, 16 of the last 20 appointments to the Supreme Court have been made by Republican Presidents. To be clear, every one of the court’s 40 opinions affirming abortion over the last 48 years has been decided by a Republican dominated Supreme Court.
In 1992, the most serious challenge to Roe, Planned Parenthood v. Casey was considered by a Supreme Court that was 8-1 appointed by Republicans, and yet the court still affirmed Roe 5-4, and the lone Democratic appointment, Byron White, was staunchly against abortion the whole time, voting against it in every case.
Honestly, the Supreme Court is committed to precedent, or stare decisis, and we should have no expectation that they will change their opinion on abortion any time soon.
What can Idaho do about it?
Here is what we should stop trying to do – the Supreme Court’s opinion on abortion in all of their 40 cases is that a mother has a right to murder her child by abortion up until roughly 24 weeks gestation. Over the years, Idaho has passed dozens of “pro-life” laws that have attempted to work within this Supreme Court domination framework, and not one single pro-life law passed by the Idaho legislature has ever effectively banned a single abortion in all of these decades since Roe. I am not kidding you.
That is because the federal courts have been intransigent on this arbitrary 24 week judgment. They have not budged, and Idaho should stop playing by their arbitrary and capricious judgments. We should stop trying what has never worked – passing pro-life laws meant to comply with the federal courts.
What Idaho SHOULD do.
Benjamin Franklin famously said it is “a Republic, if you can keep it.” Keeping our Republic means we should stop capitulating to an unlawful United States Supreme Court. Our federal constitution DOES NOT contain a right to murder by abortion, nor does it contain a requirement that states obey the federal courts if they try to assert that such a right exists.
In fact, it is UNconstitutional for Idaho to obey every random dictate of the Supreme Court. Sometimes, Supreme Court opinions are wildly wrong, as in the case of abortion, and Idaho has the right and duty to ignore or defy the Supreme Court when it is wrong about serious issues. I have always said that the Supreme Court does not have a police force, a military, nor does it operate prisons. It rather expects states to enforce Supreme Court opinions as if every single one of those opinions is law.
But Idaho officials take an oath to uphold the constitution as the Supreme Law of the land. The oath is NOT to uphold the Supreme Court’s opinion of the constitution in every case. Our founders did not throw off a single king, King George, in order to replace him with 9 black robed kings in Washington DC. Our form of government is better than a monarchy and an oligarchy because it actually includes multiple balances of power – state versus federal power and checks and balances between the branches of government, the legislatures, the executives and the judiciary.
There is a real balance of power built into our system should the states finally decide to realize and enforce it. The federal courts have played the tyrant on the abortion question, and the states have the duty and power to defy the courts. The Supreme Court is not the final arbiter of all constitutional questions. Its power is in being right, and it has no power when it is wrong.
Ignoring the Supreme Court is not just an academic theory either. In 2005 (See Gonzales v. Raich), the Supreme Court affirmed the criminality of marijuana based on the Controlled Substances Act passed by the Congress in 1971 and the interstate commerce clause in the US constitution, and dozens of states have since completely ignored the Supreme Court and the Congress and have legalized marijuana anyway.
The states should do no less on the murder by abortion question, and that is why I wrote just such a bill to outlaw murder by abortion that was filed in the last legislative session by Idaho House representatives Ron Nate and Heather Scott. You can read H056 here. My bill would reverse the legality of abortion as currently allowed in Idaho law, and it would outlaw every single act of murder by abortion in the jurisdiction of Idaho. And it is constitutionally justified and defensible.
And if I may be so bold.
My bill to abolish abortion would restore the American Republic to its design. Benjamin Franklin was serious when he warned that we need to keep the Republic. We are not keeping the Democratic Republic of North Korea; we are keeping the American Republic, which has actual boundaries between state and federal power and between duties and authorities of the various branches of government. Legislatures write laws; courts do not.
The Feds and the federal judiciary have been unlawfully hunting on Idaho land. The boundary must be enforced by Idaho. If I own personal land, and hunters use if every year to hunt without my permission, even though a sign is posted, it is up to me, the property owner, to enforce the boundary in order for that boundary to be effective. Otherwise the unlawful hunters are not going to police themselves, and they are certainly going to take advantage of me. Let’s get to work on this and enforce America’s boundaries by enforcing Idaho’s legal authority.
Murder by abortion must be criminalized and abolished.