Blog for Democracy has the response from the Chairman of the subcommittee that tabled the HLA yesterday. Its worth a read.
Dear Friends and Constituents:
I serve as chairman of the House Judiciary Sub Committee that held extensive hearings this week on the Human Life Amendment (HR 536). After two days of hearing testimony and documentary evidence from the sponsors of the bill, groups favoring and opposing it, lawyers and law professors, medical doctors and scientists, and citizens across the political spectrum, my sub committee voted to table the amendment, effectively stopping it for this legislative session.
No vote has elicited so much controversy since my election four years ago. Therefore, it is important for me to explain to you my reasoning for recommending that the matter be tabled and defeated this year in committee.
Overturning Roe v. Wade?
All that glitters is not gold . . . .
The Human Life Amendment (“HLA”) in its original form stated the following:
Paragraph XXIX. Paramount right to life. (a) The rights of every person shall be recognized, among which in the first place is the inviolable right of every innocent human being to life. The right to life is the paramount and most fundamental right of a person.
(b) With respect to the fundamental and inalienable rights of all persons guaranteed in this Constitution, the word ‘person’ applies to all human beings, irrespective of age, race, sex, health, function, or condition of dependency, including unborn children at every state of their biological development, including fertilization.
Proponents of HLA believe that it would lead to overturning Roe v. Wade, the 1973 U.S. Supreme Court decision which recognized a federal constitutional right to privacy that encompassed abortion. That belief, however, is dubious at best.
While Georgia Right to Life favored the measure, many mainstream Pro Life organizations did not. The Georgia Catholic Archbishops jointly declared:
After a period of lengthy research and consultation with experts in constitutional law as applied to abortion, the bishops came to the disappointing conclusion that the proposal cannot achieve its stated legal goal of providing a direct challenge to the central holding of Roe v. Wade.
Clarke D. Forsythe, President of Americans United for Life, the nation’s oldest secular Pro Life organization, wrote:
Even if a specific state HLA sparked a test case, this Court would most likely never hear the case. The USSC has virtually complete discretion over its cases; it could easily refuse to review any case involving a state HLA. Proponents of state HLAs frequently argue that an HLA is an effective vehicle to present medical evidence that human life begins at conception (evidence that was not available in 1973 when Roe was decided) and that it is this evidence that will cause the USSC to hear the case and, ultimately, lead to Roe be overturned. However, the Court has refused at least nine times over the past 15 years to hear a case that directly challenged Roe using this same evidence; most recently on October 1, 2007, when the Court refused to hear a case on appeal from the New Jersey Supreme Court, Acuna v. Turkish.
James Bopp, Jr., national counsel for the National Right to Life wrote:
The Supreme Court’s current makeup assures that a declared federal constitutional right to abortion remains secure for the present. This means that now is not the time to pass state constitutional amendments or bills banning abortion because (1) such provisions will be quickly struck down by a federal district court, (2) that decision will be affirmed by an appellate court, (3) the Supreme Court will not grant review of the decision, and (4) the pro-abortion attorneys who brought the legal challenge will collect statutory attorneys fees from the state that enacted the provision in the amount of hundreds of thousands of dollars.
Their conclusions were echoed in testimony before our sub committee from law professors from each of the accredited law schools in Georgia who testified that the Human Life Amendment will have no impact on Roe v. Wade and, instead, will itself likely be struck down.
The problem is simple. The federal constitution takes precedence in this country over state constitutions and Roe v. Wade is based on the U.S. Supreme Court’s interpretation of the federal constitution. In other words, if you want to overturn Roe v. Wade by constitutional action, you need to amend the U.S. Constitution and not our state constitution.
The Effect of the Human Life Amendment on Georgia Law
An attorney on behalf of the Georgia Right to Life eloquently and forthrightly acknowledged in the final day of the committee hearings that the purpose of HLA is to end all abortions in Georgia. This included abortions for rape, incest or most other reasons except for the life of the woman. I do not believe that most of our state’s citizens – including many of us who have deep moral concerns about abortion — are prepared to go that far in mandating state action on the subject.
Moreover, because of its broad sweeping language, HLA would also have an effect on many other aspects of our laws which effect our lives including issues concerning in vitro fertilization, certain forms of contraception, wrongful death and civil tort law, criminal law, child abuse and neglect statutes, end of life decision making, etc.
At the present time, these issues are largely decided by our state legislature. If HLA passed, however, that responsibility would largely pass to the judiciary. Such an enormous shift in power is dangerous. The role of a judge in his or her black robe is to deliver edicts from on high. The role of the legislator is quite different. Our job includes bringing the wisdom of our community to the decision making process. By doing so, we collectively seek to reflect the values and opinions of our state in the legislation that we pass.
This process isn’t perfect and often we make mistakes. That is why I like to point out that laws are written on paper for a reason – we can always tear them up and start again. Not so, however, with constitutional amendments like HLA. The constitution is chiseled in stone and mistakes are far more difficult to rectify.
Throughout this process I was asked repeatedly by advocates of HLA to lay aside my misgivings about this proposal and vote it out of committee for others to decide on it. That is not how I interpret my role as a legislator. Edmund Burke, the great 18th century Member of Parliament and philosopher once wrote the following about the duties of representative:
Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.
As I stated earlier, it is my responsibility as a legislator to bring the wisdom of my community to the capitol but I also owe my constituents – and my fellow legislators — my best judgment and the willingness to assert it. To do otherwise, would be to betray my duties to them.
I recognize and appreciate the well meaning purpose of HLA and agree that we must foster a culture of life in our society. This proposal, however, would not have accomplished its purpose and would have resulted in far too many unintended consequences to permit it to go forward. For those reasons, I opposed it.