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The Historical Status Of Preborn Humans

The actual keys to success is entirely in the hands of these state legislatures and executives and the people that will back them.

The Historical Status Of Preborn Humans

The Historical Status Of Preborn Humans

by Scott Herndon

I am thinking of the Idaho Abortion Human Rights Act by Idaho state representatives Heather Scott and John Green, and I am thinking of the historical status of preborn humans in our laws.

Historically, back to the founding of the union, not many details were known in science and medicine of the origins in the womb of human life, though there is actually quite a bit in scripture on the subject. Idaho, like many states, incorporated the English common law into our Idaho Code. In common law, since not much was known scientifically or medically, human rights status of the preborn was not really granted generally, and rather, human rights were recognized by the so-called “born alive” rule, which basically said a fetus was only a victim when there was harm caused while in the womb and the fetus was then born alive with signs of the visible harm, or perished because of the harm.

Murder typically is a state crime, but in 1908 the Congress passed the Major Crimes Act, and though the federal government does not incorporate into its Code the English common law, they do often derive definitions from the common law. So, the federal murder statute created in 1908 followed the common law in that that murder was the killing of one human being by another, and that an infant born alive that later died as a result of fetal injuries was a human being.

From 1908 through about 2004, the federal criminal murder and manslaughter statutes had been applied to protect babies in utero who were subsequently born alive. The states, having most of the jurisdiction over murders, have gone further with the advancement of science and medical knowledge, and most have by now included human rights and victim status to babies in utero, regardless of their viability or whether they are born alive. That is why in Idaho there are multiple criminals serving long sentences for killing preborn human beings.

The Congress caught up finally in 2004 when they passed the Unborn Victims of Violence Act, also known as Laci and Conner’s Law. The 2004 Act records indicate that the House Judiciary Committee urged the passage of the Act because “there remains a gaping hole in federal law which would allow an unborn child to be killed or injured during the commission of a violent federal crime without any legal consequence whatsoever”.

The 2004 Act of Congress extended the reach of the current federal criminal statutes to protect a new class of victims, preborn humans. But, the Act, in deference to the 1973 Roe and 1992 PP v Casey Supreme Court opinions, also created a class of persons who cannot be prosecuted under the federal criminal statutes for injury caused to an unborn child. In the 2004 Act is a clear statement from Congress that the federal assault and murder statutes cannot be applied to the pregnant woman herself for any actions she takes with respect to her unborn child, nor can it be applied to people the mother hires to kill her child by abortion.

In Idaho and many other states, we have the same prohibition, in Idaho Code 18-4016, on equal treatment in law of all persons who kill preborn children.

So, that brings us to where we are today – in the vanguard of scientific, medical, moral and legal understanding that recognizes that the preborn human should possess the same human rights as the born human. The only thing seeming to hold back the actual extension of these rights are historical and antiquated court opinions from 1973 that states and their attorneys general think they need to obey.

We know because the Congress is so divided in its political ideology that it will not create a federal law that confers full human rights in regards to the murder, by any means, of preborn humans.

We also know that the Roe court was heavily weighted with Republican appointees and that all subsequent courts have been heavily weighted with Republican appointees, and based on the evidence of their written opinions, we are at an ebb in the tide of justices on the court who would recognize the full human rights of the preborn as applied to abortion.

That leaves it to the states to lead in the recognition and conferment of full human rights and equal protection under law to preborn humans. And the Idaho Abortion Human Rights Act would do that very thing. Like the seeking to end slavery led by men like Wilberforce, Garrison and Douglas, or seeking the end of racial discrimination by men like Martin Luther King, Jr., state legislatures seeking to end abortion in their jurisdiction, in contradiction to current federal judicial status on the matter, are in the vanguard of a historic human rights movement and are indeed civil rights leaders.

The actual keys to success is entirely in the hands of these state legislatures and executives and the people that will back them. The path forward is not now visible through the Supreme Court of the United States. But courts do not possess actual power; the people in our Republican union do. The people of the states do. Courts do not make law, state legislatures and the Congress do. Courts do not run police forces or prisons – the states do.

I hope and pray our legislators in Idaho will be wise and bold and good. I also pray that states like Texas, Oklahoma, and Indiana, where there are bills almost identical to the Idaho Abortion Human Rights Act, will also be successful.



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