What is going on in the legislature between the pro-life “fetal heartbeat bill” camp and the pro-life “trigger bill” camp makes no sense to a whole lot of ardent pro-life citizens. The bills seem to be caught up in some kind of power struggle between legislators. Here, I think, is the way forward.

The Overlooked Questions

I appreciate that some well-intentioned, pro-life legislators like Lt. Governor Randy McNally think the fetal heartbeat bill is too aggressive and defense of it will be a waste of taxpayer money and effectively put that money in the hands of Planned Parenthood and its attorney. I appreciate that other equally well-intentioned, pro-life legislators like Rep. Micah Van Huss and Rep. Timothy Hill think the trigger bill is too passive.

What I do not get is the fight between these two camps. Why not be aggressive in passing legislation that might lead to the reversal of Roe v. Wade if a constitutionally grounded defense of it is available? And why not also have the trigger bill in place in the event that legislative effort fails in court?

Why Supporting the Trigger Bill Alone Is Indefensible

The reversal of Roe has to be the ultimate goal of the pro-life community. If it is not, then “pro-life” is not the correct moniker for that community. Whatever that community is, I am not part of it.

But if the reversal of Roe is the goal, it will never happen unless some pro-life law is passed and a lawsuit challenging the constitutionality of that law goes before the U.S. Supreme Court.

Depending on some other state to pass a bill and defend it on solid enough constitutional grounds to cause Roe’s reversal is why many pro-life legislators and citizens find the trigger bill too passive.

They rightly ask: Why should Tennesseans forfeit their opportunity to be pro-life leaders in the effort to overturn Roe and, instead, be content with tag-along status, following some other state’s lead and trusting that state to do things correctly?

Don’t Ignore the ‘Evidence’ Calling for Roe’s Re-Examination

Now some in the if-we’re-not-sure-we-can-take-the-Promised-Land-let’s-stay-in-Egypt camp say that putting the issue before the U.S. Supreme Court now could result in the constitutional situation being made worse.

What?! When New York is applauding the fact that Roe makes infanticide constitutionally defensible and allowable, how could things get worse?¹

If that’s what the law allows and the law does not call it murder, it is time to act and use that as evidence for a constitutionally grounded argument for re-examining Roe that some pro-life lawyers have allowed the U.S. Supreme Court to ignore for far too long.

Why Opposing the Heartbeat Bill Is Indefensible

For those legislators, lawyers, jurists, and citizens who have been held captive by the notion that rights are limited to those enumerated in the U.S. Constitution and Roe-like “emanations” flowing from them, it is easy to overlook the availability of the long-dormant Ninth Amendment as a constitutional defense of the heartbeat bill (per a proposed amendment in the Senate).

For the life of the unborn and the end of constitutionally protected infanticide, it is time to turn to the promise of life’s inalienability without due process of law that was bequeathed to us by our Founding Fathers in the Ninth Amendment.

The Ninth Amendment expressly prohibits a construction of enumerated rights in the Constitution that would “deny or disparage others retained by the people.”

But if that is a constitutionally given and protected right, its prohibition should apply with even greater force to rights that only “emanate,” using Roe’s terminology, from the Constitution as a result of the “reasoned judgment” of as few as five Ivy League lawyers.

What Does the Ninth Amendment Protect?

But what are these rights that Roe’s construction of the Constitution cannot deny to others?

Washburn University law professor Jeffrey Jackson advised the following in his 2010 law review article entitled “Blackstone’s Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights”:

[T]hey were those rights that the framing generation believed they inherited from English constitutional and common law, with important modifications stemming from the experiences of American colonists . . . [I]f the goal is to determine what was the general consensus among Americans at the time of the framing and the adoption of the Bill of Rights, the formulation of rights in Blackstone’s Commentaries should form the baseline.²

And what did Blackstone, who was so influential among our nation’s lawyers and jurists, say?

He said there were three “absolute rights,” meaning those “such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it.” They were “the right of personal security, the right of personal liberty, and the right of private property.”

Blackstone then expounded the meaning of the right of personal security as follows:

The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

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 an infant is able to stir in the mother’s womb. . . . An infant en ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. . . .

This natural life . . . cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority.

However, with respect to “personal liberty,” Blackstone said it “consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.”³

In this light, it is clear that the kind of expansive liberty given by Roe to one human being to the fatal detriment of another human being is not that which the Ninth or the 14th Amendments protected.

Supreme Court Justice Clarence Thomas put it well:

As used in the Due Process Clauses, “liberty” most likely refers to “the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.” 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure.⁴

In other words, this is not some cockamamie legal theory I’ve dreamed up in my own head. Let’s use it!

Paying for Abortion or for Protecting Inalienable Rights?

I agree with those who, like Lt. Gov. McNally, rightly do not want to see taxpayer money go to Planned Parenthood for defending the poorly written and constitutionally indefensible House fetal heartbeat bill.

But now that he and the members of the Senate’s Judiciary Committee have been given a good amendment rewriting that bill and now know that a constitutionally grounded argument can be offered in support of it, they need to ask themselves this question:

Am I willing to spend $1 to $2 million—one-half of one percent of our budget—to defend the promise of the Ninth Amendment to our Constitution that not all rights come from positive law, that some rights are inalienable without due process of law, and that the most basic right of them all is life, without which any notions of liberty are meaningless?

I sure hope they would. If you ask me, it’s a small price to pay to try to preserve our constitutionally protected God-given rights compared to the cost paid by our Founding Fathers to secure them for us.

We owe at least that much to our courageous ancestors and to those not yet born who will follow us. 

NOTES

1. "Cultural elites have more recently pushed to transform the super-liberty into a super-affirmative-entitlement—a claim-right that imposes upon all of us not just a duty to abstain from interfering in abortion, but also an affirmative duty to support and even subsidize the abortion industry’s practice. This evolution is illustrated in their insistence that taxpayers must pay subsidies to abortion providers and that people of faith and well-formed conscience must be forced to pay for abortifacient drugs." Adam J. MacLeod, "Texas Lawmen and the Lawless Court," Public Discourse, July 7, 2016. When that happens, but I suspect the pro-life lawyers will wish we had acted now in an effort to stave that off.
2. Jeffrey D. Jackson, Blackstone’s Ninth Amendment: A Historical Common Law Baseline for the Interpretation of Unenumerated Rights, 62 Oklahoma L. Rev. 167, 171 (2010); see also, Obergefell v. Hodges, 135 S.Ct. 2584, 2632 (Thomas, J., dissenting)(“The Framers drew heavily upon Blackstone’s formulation, adopting provisions in early State Constitutions that replicated Magna Carta’s language, but were modified to refer specifically to “life, liberty, or property.”)
3. William Blackstone, Commentaries on the Laws of England, 119-120, 125-129 (Philadelphia: J.B. Lippincott Co., 1893).
4. Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584, 2632(2015).

Read the Memo about the Fetal Heartbeat Legislation Testimony

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David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.