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Roe at 40: A Short History of Roe v. Wade, Abortion in the USA, and of the LDS Church Response to Roe Lynn D. Wardl

Roe at 40: A Short History of Roe v. Wade, Abortion in the USA, and of the LDS Church Response to Roe Lynn D. Wardle The Bruce C. Hafen Professor of Law Brigham Young University Mini-Symposium on Roe at 40 J . Reuben Clark Law School Brigham Young University January 22 , 2013.

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Roe at 40: A Short History of Roe v. Wade, Abortion in the USA, and of the LDS Church Response to Roe Lynn D. Wardl

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  1. Roe at 40: A Short History of Roe v. Wade, Abortion in the USA, and of the LDS Church Response to Roe Lynn D. Wardle The Bruce C. Hafen Professor of Law Brigham Young University Mini-Symposium on Roe at 40 J. Reuben Clark Law School Brigham Young University January 22, 2013

  2. Introduction: A Short History of Abortion in the USA A. Common Law & American codifications until 1966 B. Roe and the Revolution in Abortion Law C. Roe by the numbers: How Many Abortions? D. The Effects of Roe Upon the Law The Doctrines and Policies of the Church of Jesus Christ of Latter-Day Saints Concerning Elective Abortion Organization of the LDS Church, its Leadership, and the Importance of Teaching Official Position of the LDS Church re: abortion Nineteenth Century LDS Condemnation and Rejection of Elective Abortion LDS Church Response to the Movement to Legalize and Social Acceptance of Elective Abortion in Since 1960 Linking the Doctrine to Foundational Theological, World-view Principles LDS Church Positions on the Legalization of Elective Abortion Enforcement of the LDS Policy Rejecting Elective Abortion Mormons’ Support for and Adherence to The LDS Church Position Opposing Elective Abortion Conclusion: What Lies Ahead for Roe?

  3. William Blackstone, Commentaries on the Common Law of England (1756) • Abortion was a crime at common law since 12th century • Blackstone, Rights of Persons: “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. For if a woman is quick with child, and by potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offense in quite so atrocious a light but merely as a heinous misdemeanor.”

  4. Declaration of Independence (1776) • “all Men are created equal, that they are endowed by the Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness – That to secure these Rights Governments are instituted among men . . . .” • Codification of Abortion common law in 19th century and Modification to reflect new scientific knowledge of procreation (alive at conception so fetal life protected from conception)

  5. Ongoing Abortion Law Reforms Pre-Roe Hard cases life and serious health risks for mother rape or incest severe fetal defect Reform ALI, Model Penal Code (3 exceptions) 4 states + 14 states reform laws 1967-72

  6. Roe v. Wade, 410 US 113 (Jan. 22, 1973) • Unwritten (SDP) constitutional right of privacy includes abortion decision • No significant restrictions before birth • No restrictions at all in 1st Trimester • Only minor regulation of medical safety in 2d Tri • After ‘viability’ (28 wks) state may restrict • - unlessnec to protect life or health of mother – defined very broadly to include financial health, stress, etc. DOE v. Bolton: Georgia’s ALI model Penal Code abortion provisions unconstitutional Effect: All abortion laws in all 50 states invalidated

  7. Expansion: Major Supreme Court Abortion Cases (2013) (Excluding Most Summary Dispositions and Procedural or Incidental Cases) • 1. United States v. Vuitch, 402 U.S. 62 (1971) • 2. Roe v. Wade, 410 U.S. 113 (1973) • 3. Doe v. Bolton, 410 U.S. 179 (1973) • 4. Bigelow v. Virginia, 421 U.S. 809 (1975) • 5. Connecticut v. Menillo, 423 U.S. 9 (1975) • 6. Planned Parenthood v. Danforth, 428 U.S. 52 (1976) • 7. Bellotti v. Baird (I), 428 U.S. 132 (1976) • 8. Maher v. Roe, 432 U.S. 464 (1977) • 9. Beal v. Doe, 432 U.S. 438 (1977) • 10. Poelker v. Doe, 432 U.S. 519 (1977) • 11. Colautti v. Franklin, 439 U.S. 379 (1979) • 12. Bellotti v. Baird (II), 443 U.S. 622 (1979) • 13. Harris v. McRae, 448 U.S. 297 (1980) • 14. Williams v. Zbaraz, 448 U.S. 358 (1980) • 15. H. L. v. Matheson, 450 U.S. 398 (1981) • 16. City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983)

  8. 17. Planned Parenthood Association of Kansas, Missouri, Inc. v. Ashcroft, 462 U.S. 476 (1983) • 18. Simopoulos v. Virginia, 462 U.S. 506 (1983) • 19. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) • 20. Diamond v. Charles, 476 U.S. 54 (1986) • 21.* Frisby v. Schultz, 487 U.S. 474 (1988) • 22.* Webster v. Reproductive Health Center, Inc., 492 U.S. 490 (1989) • 23. Hodgson v. Minnesota, 497 U.S. 417 (1990) • 24. Ohio v. Akron Center for Reproductive Health, Inc., 497 U.S. 502 (1990) • 25. Rust v. Sullivan, 500 U.S. 173 (1991) • 26.* Planned Parenthood v. Casey, 505 U.S. 833 (1992) • 27.* Bray v. Alexandria Women's Health Clinic, 508 U.S. 263 (1993) • 28.* National Organization for Women, Inc. v. Scheidler, 510 U.S. 249 (1994) • 29.* Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994) • 30. *Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997) • 31. Lambert v. Wicklund, 117 S.Ct. 1169 (1997) • 32. Mazurek v. Armstrong, 117 S.Ct. 1865 (1997) • 33. *Hill v. Colorado,530 U.S. 703(2000) • 34. Stenberg v. Carhart, 530 U.S. 914 (2000) • 35. Ayotte v. Planned Parenthood, 126 S.Ct. 961 (2006) • 36. *Scheidler v. National Organization for Women, Inc., 126 S.Ct. 1264 (2006) • 37. Gonzales v. Carhart, 550 U.S. 124, 127 S.Ct. 1610 (2007) * = pro-life free speech or expression case

  9. Other Notable Supreme Court Cases Involving Abortion • 1) Arnold v. Sendak, 429 U.S. 968 (1976) • 2) *Guste v. Jackson, 429 U.S. 399 (1977) • 3) Hartigan v. Zbaraz, 108 S.Ct. 479 (1987) • 4) Fargo WomensClinit v. Schafer, 507 U.S. 1013 (1993) • 5) *Lawson v. Murray, 515 U.S. 1110 (1995) • 6) Leavitt v. Jane L., 116 S.Ct. 2068 (1996) • 7) Janklow v. Planned Parenthood, 517 U.S. 1174 (1996) • 8) *Lawson v. Murray, 525 U.S. 955(1998) • 9) * Federal Election Commission v. Wisconsin Right to Life, 551 U.S. U.S. 449 (2007) • 10) *Lefemine v. Wideman, __ U.S. __, 2012 WL 5381602 (Nov. 12, 2012) • * = pro-life free speech or expression case

  10. The Five Categorical Wrongs of Roe • Roe v. Wade has severely distorted American law • Roe has severely distorted Americans’ practice of abortion • Roe has caused a serious erosion of the ethic of respect for the sanctity of inconvenient life. • Roe has caused a severe erosion of the dignity of Personhood. • Roe has seriously eroded rights of conscience

  11. I. Fifteen Wrongs (Four Distortions) of Roe v. Wade upon Law in the U.S. I. Structural Distortions 1) Abortion Regulation nationalized Violation of federalism; federal govt (crts) set policy 2) Abortion Regulation Constitutionalized (SDP) 3) Judiciary created new constitutional right (SDP) (White, J. judicial ‘fiat’) Violated Separation of Powers, Check & Balances 4) Abortion Regulation judicialized- Courts (mostly fed) creat/monitor/expand new constitutional right 5) Altered / circumvented amendment process of Art. V

  12. II. Substantive Doctrinal Distortions 6) Substantive Private Right to Kill Unborn Child read into Constitution • US has most radical abortion law in the world (MA Glendon) 8) No restriction until 3rd trimester – viability (abortionists’ choice) - 2d trimester only minor regulation - of method 9) Denial of Pro-Life First Amendment Speech & conscience rights • No laws requiring notice to husband permitted • Circumvention of parents’ rights accepted (jud bypass) 12) Nearly all abortion restricts struck down for 40 years (except $ funding, p’al notification, informed consent) • Process Distortions 13) Legislature and political process largely excluded, shut down. 14) Judicial process has politicized abortion law even more and more extremeresult than when political branches control (contrast US v. Europe) – major election issue every federal election. 15) Politicized judiciary – spectacle of contention re: SCOTUS nominees

  13. ABORTIONS IN THE UNITED STATES, In Even and “5” years, 1972-2008 Year Number Rate Ratio %Repeat %<19 % Unm’d

  14. Abortions: 1972-2005 (AGI data)* *The Alan Guttmacher Institute produces the most reliable data on abortions in the United States. However, even the AGI estimates that 3-6% of all abortions are unreported. (CDC data is usually 12-19% lower than AGI because of CDC’s passive methods.) Sources: Facts on Induced Abortion in the United States, May 2010 available at http://www.guttmacher.org/pubs/fb_induced_abortion.html#2 (seen 7 July 2010) (22% of pregnancies end in abortion; 1.21 million abortions; half of all women having abortions had previous abortions; 2% of women 15-44 have abortions each year; one-third of all American women will have an abortion); Sources: Rachel K. Jones, et al., Abortion in the United States: Incidence and Access to Services, 2005, 40 Perspectives on Sexual and Reproductive Health 6 (March 2008), available at http://www.guttmacher.org/pubs/journals/4000608.pdf (seen 7 July 2010); Abortion in the United States: Statistics and Trends, available at http://www.nrlc.org/abortion/facts/abortionstats.html (seen 7 July 2010); compare Sonya B. Gamble, et al, Abortion Surveillance --- United States, 2005, (CDC, MMWR, Nov. 28, 2008 / 57(SS13):1-32, available at http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5713a1.htm (seen 7 July 2010) (reports 820,141 legal abortions in 49 reporting areas; abortion ratio of 233/1000 live births, and rate of 15 / 1000 women 15-44). CDC, MMWR, Abortion Surveillance – US, 2009 (November 2012) From 2008-2009 5% drop in abortion number & rate, largest since CDC began keeping records in 1969.

  15. Mary Ann Glendon,Abortion & Divorce in Western Law

  16. II.

  17. III. The History, Doctrines, Theology, and Policies of the Church of Jesus Christ of Latter-Day Saints Concerning Elective Abortion Organization of the LDS Church, its Leadership, and the Importance of Teaching Official Position of the LDS Church re: abortion Nineteenth Century LDS Condemnation and Rejection of Elective Abortion LDS Church Response to the Movement to Legalize and Social Acceptance of Elective Abortion in Since 1960 Linking the Doctrine to Foundational Theological, World-view Principles LDS Church Positions on the Legalization of Elective Abortion Enforcement of the LDS Policy Rejecting Elective Abortion

  18. OFFICIAL LDS POSITION STATEMENT ON ABORTION: “The Church of Jesus Christ of Latter-day Saints believes in the sanctity of human life. Therefore, the Church opposes elective abortion for personal or social convenience, and counsels its members not to submit to, perform, encourage, pay for, or arrange for such abortions. The Church allows for possible exceptions for its members when: Pregnancy results from rape or incest, or A competent physician determines that the life or health of the mother is in serious jeopardy, or A competent physician determines that the fetus has severe defects that will not allow the baby to survive beyond birth. The Church teaches its members that even these rare exceptions do not justify abortion automatically. Abortion is a most serious matter and should be considered only after the persons involved have consulted with their local church leaders and feel through personal prayer that their decision is correct. The Church has not favored or opposed legislative proposals or public demonstrations concerning abortion.”

  19. Official Church Handbook of Instructions administrative policy (also accessible online) clearly states: “The Lord commanded, ‘Thou shalt not … kill, nor do anything like unto it’ (D&C 59:6). The Church opposes elective abortion for personal or social convenience. Members must not submit to, perform, arrange for, pay for, consent to, or encourage an abortion. . . . Church members who submit to, perform, arrange for, pay for, consent to, or encourage an abortion may be subject to Church discipline.” A member who has, practices, or finances abortion is ineligible to serve as a missionary for the Church. “Abortion” at http://newsroom.lds.org/official-statement/abortion (seen 7 November 2011).

  20. Abortion was prohibited and punished in the 19th Century LDS Church D&C 59:6 “Thou shalt not … kill, nor do anything like unto it.” (1831). “Doctor” John C. Bennett (Assistant President, member of the First Presidency, Mayor of Nauvoo) was excommunicated in 1841 for, inter alia, adultery and abortion.

  21. In 1879 Apostle (and later third president of the Church) John Taylor declared: The standing law of God is, be fruitful and multiply; but these reformers are ‘swift to shed blood,’ even the blood of innocence; and with their pre-natal murders and other crimes, are slaying their thousands and tens of thousands with impunity, to say nothing of that other loathsome, disgusting, filthy institution of modern Christendom ‘the social evil,’ as well as other infamous practices. We must protest against feticide, infanticide, and other abominable practices of Christendom being forced upon us, either in the shape of legislative enactment, judicial decision or any other adjunct of so-called civilization. We are American citizens and are not yet deprived of the inalienable rights of life, liberty and the pursuit of happiness.

  22. In 1882 Apostle Joseph F. Smith (later President of the Church) declared in a sermon in Salt Lake City: [W]e are called an immoral people. Well, is the world so very moral? Are our accusers so very pure and holy and so extremely righteous that they should accuse us of being immoral?... [T]here is not a more moral people upon the face of the earth to-day than the Latter-day Saints . . . . I will venture to say that there are half as many children murdered among [the most virtuous Americans] annually, either before or after birth, by their own mothers or fathers, as are born to the Latter-day Saints in the same period. The Latter-day Saints are proverbial for not murdering their children. They have hosts of them, and they do not try to destroy them neither before nor after birth, but endeavor to rear them to manhood and womanhood, that they may teach them the principles of the Gospel of Christ – the highest code of morals known, that they may be able to bear off the kingdom of God upon the earth, and to regenerate the world. This is the object for which the Latter-day Saints are raising children, that God may have a pure and a righteous people. . . . But, it is said, the immorality of the Latter-day Saints consists in their marrying more wives than one. We are not charged with the crime of frequenting houses of ill-fame, of fostering illicit intercourse, of infidelity to our wives – of child murder, of drunkenness, profanity, dishonesty, cruelty or indolence, or if we are the charge is utterly false, but our great offense is in marrying our wives and protecting them and our children as all honorable men should. God forbid that I should undertake to compare the honorable marriages of the Latter-day Saints with the debauchery and sexual crimes of our accusers!

  23. Apostle and Counselor in the First Presidency, Heber C. Kimball declared prophetically in a sermon in Salt Lake City Bowery: The [religious leaders] of the day in the whole world keep women, just the same as the gentlemen of the Legislatures do. The great men of the earth keep from two to three, and perhaps half a dozen private women. They are not acknowledged openly, but are kept merely to gratify their lusts: and if they get in the family way, they call for the doctors, and also upon females who practice under the garb of midwives, to kill the children, and thus they are depopulating their own species. [Voice: ‘And their names shall come to an end.’] Yes, because they shed innocent blood. I knew that before I received ‘Mormonism.’ I have known of lots of women calling for a doctor to destroy their children; and there are many of the women in this enlightened age and in the most popular towns and cities in the Union that take a course to get rid of their children. The whole nation is guilty of it. I am telling the truth. I won’t call it infanticide. You know I am famous for calling things by their names. I have been taught it, and my wife was taught it in our young days, when she got into the family way, to send for a doctor and get rid of the child, so as to live with me to gratify lust. It is God’s truth, and I know the person that did it. This is depopulating the human species; and the curse of God will come upon that man, and upon that woman, and upon those cursed doctors. There is scarcely one of them that is free from the sin. It is just as common as it is for wheat to grow. Do we take that course here? No. I have buried several children; I have buried them in York State, too, in Monroe county, where I lived all my young days, and where I became acquainted with brother Brigham, which is rising of thirty years that we have been together, about twelve miles from where Joseph Smith lived and found the Book of Mormon. I buried two children there, lawful children, born to me by my first wife; and then I have buried some ten children here, born to me by my lawful wives; and I have altogether about fifty children; and one hundred years won’t pass away before my posterity will out-number the present inhabitants of the State of New York, because I do not destroy my offspring. I am doing the works of Abraham, Isaac, and Jacob; and if I live and be a good man, and my wives are as good as they should be. I will raise up men yet, that will come through my loins, that will be as great men as ever came to this earth, and so will you.

  24. LDS Doctrinal Reaction to Roe In the 50 consecutive semi-annual general conferences between October 1970 and April 1995, LDS Church Leaders delivered more than 75 general conference sermons addressing the practice and legalization of abortion. In those critical twenty-five years, during which the novel legal rule of abortion-on-demand was being created, imposed, established, and expanded, and during which the practice of abortion was becoming widespread and cultural acceptance was growing, the leaders of the Church of Jesus Christ of Latter-day Saints expressed unequivocal opposition to permissive abortion in every general conference; not a single semi-annual conference passed without some direct criticism of or condemnation of permissive abortion by the General Authorities.

  25. [A]bortion is a growing evil that we speak against. Certainly the terrible sin of premeditated abortion would be hard to justify. It is almost inconceivable that an abortion would ever be committed to save face or embarrassment, to save trouble or inconvenience, or to escape responsibility. How could one submit to such an operation or be party in any way by financing or encouraging? If special rare cases could be justified, certainly they would be rare indeed. We place it high on the list of sins against which we strongly warn the people. "Abortion must be considered one of the most revolting and sinful practices in this day, when we are witnessing the frightful evidence of permissiveness leading to sexual immorality." (Priesthood Bulletin, February 1973, p. 1.) As to abortions, we deplore the reported million unborn children who will lose their lives in this country this year. Certainly the women who yield to this ugly sin and the sin which often generated it, and those who assist them, should remember that retribution is sure. It is sure. Spencer W. Kimball, Ensign, November 1974, p. 9.

  26. Abortion, which has increased enormously, causes one to ask, "Have we strayed so far from God's second great commandment‑‑love thy neighbor‑‑that a baby in a womb no longer qualifies to be loved‑‑at least as a mother's neighbor?" Even so, violence to an unborn child does not justify other violence! Neal A. Maxwell, Ensign, May 1993, p. 76.

  27. The ultimate act of destruction is to take a life. That is why abortion is such a serious sin. Our attitude toward abortion is not based on revealed knowledge of when mortal life begins for legal purposes. It is fixed by our knowledge that according to an eternal plan all of the spirit children of God must come to this earth for a glorious purpose, and that individual identity began long before conception and will continue for all the eternities to come. We rely on the prophets of God, who have told us that while there may be "rare" exceptions, "the practice of elective abortion is fundamentally contrary to the Lord's injunction, `Thou shalt not . . . kill, nor do anything like unto it' (Doctrine and Covenants 59:6)” DallinH. Oaks, Ensign, November 1993, pg. 74.

  28. Except where the wicked crime of incest or rape was involved, or where competent medical authorities certify that the life of the mother is in jeopardy, or that a severely defective fetus cannot survive birth, abortion is clearly a "thou shalt not." Even in these very exceptional cases, much sober prayer is required to make the right choice. Boyd K. Packer, Ensign, November 1990, p. 85.

  29. Whatever the laws of man may come to tolerate, the misuse of the power of procreation, the destroying of innocent life through abortion, and the abuse of little children are transgressions of enormous proportion. For cradled therein rests the destiny of innocent, helpless children. Boyd K. Packer, Ensign, November 1986, p. 18.

  30. Now, as a servant of the Lord, I dutifully warn those who advocate and practice abortion that they incur the wrath of Almighty God, who declared, "If men . . . hurt a woman with child, so that her fruit depart from her, . . . he shall be surely punished." (Ex. 21:22.) . . . The Church of Jesus Christ of Latter‑day Saints has consistently opposed the practice of abortion. One hundred years ago the First Presidency wrote: "And we again take this opportunity of warning the Latter‑day Saints against those . . . practices of foeticide and infanticide." Russell M. Nelson, Ensign, May 1985, p. 13.

  31. The current official statement of the Church about abortion, available online, states: The Church of Jesus Christ of Latter-day Saints believes in the sanctity of human life. Therefore, the Church opposes elective abortion for personal or social convenience, and counsels its members not to submit to, perform, encourage, pay for, or arrange for such abortions. The Church allows for possible exceptions for its members when: Pregnancy results from rape or incest, or A competent physician determines that the life or health of the mother is in serious jeopardy, or A competent physician determines that the fetus has severe defects that will not allow the baby to survive beyond birth. The Church teaches its members that even these rare exceptions do not justify abortion automatically. Abortion is a most serious matter and should be considered only after the persons involved have consulted with their local church leaders and feel through personal prayer that their decision is correct. The Church has not favored or opposed legislative proposals or public demonstrations concerning abortion. Official Church administrative policy (also accessible online) clearly states: “The Lord commanded, ‘Thou shalt not … kill, nor do anything like unto it’ (D&C 59:6).

  32. F. The Church opposes legalizing elective abortion March 7, 1974, just a little over a year after Roe decision, a designated representative of the Church testified before a U.S. Senate Judiciary Committee's Subcommittee on Constitutional Amendments. David L. McKay, a son of the former President of the Church, David. O. McKay, and then-President of the LDS mission in New York and New England, presented "a statement on behalf of the Church of Jesus Christ of latter Day Saints," which included the recent LDS First Presidency statement opposing abortion as "one of the most revolting and sinful practices in this day," and he concluded: "The church is therefore against the legalization of abortion.“ Statement of David L. McKay in Hearings Before the Subcomm. on Constitutional Amendments of the Committee on the Judiciary, United States Senate, 93rd Cong., 2d Sess., on S.J. Res. 119 and S.J. Res. 130 at 286, 318 (March 7, 1974).

  33. G. Enforcement of Church Policy Within the Church Professor at BYU lost her teaching job – despite AAUP pressure Church Handbook: church discipline

  34. Seven Consistent Themes of LDS Official Statements About Abortion • Grave sin • Members subject to discipline • “Like unto” murder • Narrow exceptions under Priesthood counsel. • Social evil, degenerate • Church does not take position on specific legislation • Church urges members to stand up for sanctity of life, raise voice, vote, etc.

  35. Mormons’ Support for and Adherence to Church Opposition to Elective Abortion Polls Abortion practice Who is elected to public office in Utah

  36. Abortion number, rate and ratio in the United States and Utah:

  37. V. Contrasting Church Opposition to Elective Abortion with Other Biomedical Ethical Issues ART: Artificial Insemination, In Vitro Fertilization, Sperm Donation and Surrogacy Embryonic Stem-cell Research - Nutshell = STRONG contrast -

  38. VII. Conclusion: The Importance of Messages and Communications “I teach them correct principles, and they govern themselves.” – Joseph Smith

  39. The courageous German Protestant martyr, Dietrich Bonhoffer, expressed the core point in a different but relevant context when he wrote: "Silence in the face of evil is itself evil: God will not hold us guiltless. Not to speak is to speak. Not to act is to act."

  40. In his Nobel acceptance speech, ElieWiezel, wrote: “I swore never to be silent . . . . We must take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor . . . .

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