Life Advocacy Briefing

Planned Parenthood Lawyer to the Bench?

THE U.S. SENATE VOTED 48-40 last Thursday to end debate on the nomination of Nicole Berner to sit on the 4^th Circuit Court of Appeals based in Richmond, Virginia. The vote on her confirmation is scheduled for Tuesday, March 19. Readers are urged to contact their home-state senators and urge a “no” vote on the Nicole Berner nomination. [Capitol switchboard: 202/224-3121] We publish the voting record on the cloture motion at the close of this Life Advocacy Briefing.

Ms. Berner is known as a “labor lawyer” because of her employment since 2017 by the Service Employees International Union as in-house counsel, according to The Vetting Room, an Internet site which researches judicial nominations.

But the most controversial aspect of her career as a lawyer is her involvement in legal cases threatening the right to life, starting with her participation in the legal team of Michael Schiavo in the 2004 Florida lawsuit by which Mr. Schiavo sought judicial permission to withdraw nutrition and hydration from his disabled wife.

Where did she go after her time at Mr. Schiavo’s law firm, Jenner & Block? “[Ms.] Berner,” notes The Vetting Room, “spent two years at Planned Parenthood. While there, Berner was part of the legal team challenging Ohio’s ban on the drug mifepristone [RU-486]. … More recently, Berner has represented amici in a challenge to abortion restrictions in Missouri.”

And there is more controversy in the Berner record. Further from The Vetting Room: “Berner has written and commented frequently on the law, including the intersection of the law and LGBT issues. … In 2000, Berner was a plaintiff in Berner-Kadish v. Minister of Interior, a landmark Israeli Supreme Court case that recognized the rights of two mothers to be designated on a child’s birth certificate.” (Even though clearly only one could be the child’s mother.) “The case, and subsequent legal support for same-sex parents in Israel, also led to media attention and profiles of Berner and her family. …

“Additionally,” notes The Vetting Room, “conservatives may look askance at Berner’s wife’s [sic]  representation of Christine Blasey Ford, who had accused Justice Brett Kavanaugh of sexual assault.

“All in all,” opines The Vetting Room, “Berner is likely to be deemed a controversial nomination. If confirmed, Berner is likely to reinforce the liberal wing of the 4^th Circuit.”

Raving

ILLINOIS GOV. J.B. PRITZKER (D) APPEARED IN A VIDEO released in mid-March to mark the so-called celebration of “Abortion Provider Appreciation Day.” The video was “released,” writes Calvin Freiburger for LifeSiteNews, “through [Mr.] Pritzker’s far-left organization Think Big America [and] offers a ‘thank-you’ to ‘doctors, nurses, clinic staff and volunteers’ involved in abortions for their ‘compassion.’”

Addressing those he thinks of as heroes, Gov. Pritzker said in the video, according to the LifeSiteNews report, “‘You’re on the front lines of this fight, and your sacrifices and your work make me proud.’”

We thought our Illinois readers would not be surprised but would want to know about this.

Iowa Diving In on IVF

THE BATTLE OVER IN VITRO FERTILIZATION IS BUILDING, with the Iowa House passing a bill on March 7 to “make it a felony,” reports Emily Mangiaracina for LifeSiteNews, “to ‘cause the death of an unborn person without the consent’ of the mother,” a proposal, she says, which “could … obstruct in vitro fertilization (IVF) operations in the state.

“The legislation revises the language of current state law,” Ms. Mangiaracina explains, “which bans non-consensually ‘terminat[ing] a human pregnancy,’ to criminalize fatally or seriously harming unborn children specifically. The bill defines an unborn person as ‘an individual organism of the species homo sapiens from the moment of fertilization to live birth.’”

The House passed the bill, notes LifeSiteNews, “a day after Alabama enacted a law granting civil and criminal immunity from a similar personhood bill to IVF providers, which dispose of 93% or more of the children they create as ‘medical waste.’”

It is our opinion that the pro-life movement is going to need to come to grips with this issue, how to legislate it and how to handle it politically. The Iowa effort appears to be a good first step – especially coming so soon after Alabama’s fumble – but our officials and candidates are going to need good advice for handling this issue politically. We acknowledge, it is sensitive. But right is right, and justice is justice, and life is life.

Holding On When the Ride Gets Bumpy

TRYING TO HEAD OFF THE ALABAMA GOVERNOR’s SIGNING of the state’s hasty legislation sheltering in vitro fertilization businesses from liability, a dozen pro-life leaders co-signed a letter to Gov. Kay Ivey (R) “condemn[ing] the law,” reports Louis Knuffke for LifeSiteNews, “saying it ‘provide[s] blanket civil and criminal immunity’ for such businesses and ‘withdraw[s] existing legal protections for Alabama’s most vulnerable persons, simply because those persons were created through IVF.’”

Among the letter’s signers listed by Mr. Knuffke are Live Action’s Lila Rose, Catholic Vote’s Brian Burch and Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America.

The letter expressed objections, reports Mr. Knuffke, “that the bill [now law] was a ‘sweeping legislation’ that ‘would slam the door on any protections for the most vulnerable Alabamians, prevent families from seeking justice for the death or harm caused to their children, and leave a trail of destructive, immoral implications in its wake.’”

Unfortunately, Gov. Ivey signed the legislation as soon as it hit her desk, in the midst of a media firestorm, with no time allowed for contemplating its implications and within a week of the state’s supreme court correctly ruling that the parents of negligently destroyed embryonic children were entitled to compensation for their loss.

The report by Mr. Knuffke concludes with remarks by Katie Faust, founder and president of Them Before Us, which describes itself as a “child-centric” advocacy organization: “The Alabama Supreme Court handed pro-lifers one of the greatest victories in our history, making it very clear that children are human deserving protection from the moment of conception,’” she wrote, as reported by LifeSiteNews.

“‘If it had been an anti-abortion ruling,’” said Ms. Faust in Mr. Knuffke’s report, “‘Republicans would’ve cheered. “Finally, a major institution that recognizes that children have a right to life!” But because the ruling targeted the baby-making industry and not the baby-taking industry, Republicans balked,’” she said.

We have said it before and we’ll say it again: This issue is a politically sensitive one which does not easily fit into the 50-year-old struggle over the right to life, even though it is fundamentally an element of that issue. It is critical that pro-life strategists develop a coherent approach to questions about a candidate or official’s stand on this matter; it will come up in campaigns this year, without a doubt. And it is critical that pro-life candidates and officials bone up on IVF and prepare a cogent, pro-life message to handle the issue.

Setting the Record Straight

March 11, 2024, report from Focus on the Family’s Daily Citizen

             Pro-life viewers of Pres. Joe Biden’s State of the Union Address last night likely walked away from the speech perplexed, offended and deeply saddened – and probably all at the same time.

             The 68-minute oration covered a wide range of issues, including references to the shrinking Snickers Bar. But for our purposes, we want to attempt to separate fiction from … fact concerning what was said about abortion and broader issues related to the sanctity of human life.

             Pres. Biden said last evening, “The Alabama Supreme Court shut down IVF treatments across the state, unleashed by the Supreme Court decision overturning Roe v. Wade.”

             The Alabama Supreme Court did no such thing. Instead, the decision didn’t make IVF illegal. It made destroying embryos illegal. Several clinics chose to suspend services after the ruling, but they weren’t forced to do so. It would seem they closed because they were concerned they’d be held liable if embryos were destroyed during the treatments.

             Additionally, the charge that Roe’s reversal led to Alabama protecting embryos was also not accurate. “There are states that have banned embryo-destructive research for a long time [under] Roe and before Dobbs,” O. Carter Snead of the University of Notre Dame law school told the Washington Examiner. “There was never a suggestion that there is a constitutional right to IVF.”

             Pres. Biden’s statement, “Clearly those bragging about overturning Roe v. Wade have no clue about the power of women in America” belies several realities. First, we don’t know of any pro-lifers bragging about anything. Celebrating, yes, but not boastfully or pompously. Second, we pro-lifers believe in the power of both women and men – which is why we’ve been striving to protect the preborn for decades. Half of all abortions kill future women, erasing forever their contributions to the world. We also believe there’s no one stronger or more beautiful than a mother leaning and living into her calling.

What Is the Supreme Court Up to?

March 8, 2024, LifeSiteNews commentary by attorney David Bjornstrom

             The Supreme Court on Feb. 20 denied a motion to recognize unborn babies as a class of interested parties when it reviews abortion pill “safety” this month in the case of FDA v. Alliance for Hippocratic Medicine. Abortion pills are used in more than half of all US abortions, and there is no justification to ignore the safety of such a key group, the innocent victims.

             The Court’s refusal to hear from an attorney representing the unborn would not have been surprising under the old Roe v. Wade regime, since Roe required the rights of the unborn to be ignored. But the Court in its 2022 Dobbs ruling voided Roe and allowed states to give a right to life to the unborn. Since then, many states have done just that. So why is the Supreme Court still denying any legal status to the unborn?

             We hope, of course, that the Court will still rule against the abortion pill based on its many dangers for the mother. But the Court seems to be signaling that the unborn victims of abortion have no say in whether those pills are “safe” for them, despite the overturn of Roe, and even though doctors for pregnant women have always known they are caring for two patients, both mother and baby.

             Court rules require that all “necessary parties” be joined in a case in order to protect their interests. This generally includes any person whose interest in a case may be impaired depending on the outcome. Preborn babies, whose very lives are at stake in this case, are the epitome of a party who should be given their day in court.

             The recent 2022 Dobbs case declared that Roe was wrongly decided, void from the start, and it allowed the states to enact legal rights to life for the unborn. The Court and the FDA should not be allowed now to disregard those state rights for the unborn, especially when a big issue in the current case is whether abortion drugs can be shipped from one state to another.

             … Roe’s reversal in 2022 means there was no Constitutional right to abortion in the year 2000, when the FDA first approved the abortion pill. The Dobbs case did not “repeal” Roe as if Roe was some kind of “law.” Rather, Dobbs held that “Roe was egregiously wrong,” void from the start. There never was any Constitutional right to abortion, so any FDA decisions disregarding the rights of the preborn should be voided as well.

             At this juncture, with Roe gone, the Supreme Court should be going back to past Court decisions that acknowledged the right of unborn children to be represented in court when those children have a personal stake in the outcome of a case.

             It would be nothing new for a court to appoint a representative for unborn interested parties. The Supreme Court in the 1884 case of McArthur v. Scott held that the unborn descendants of a deceased US Army general were entitled to legal representation in a case involving inheritance and property rights. And a 1964 case from New Jersey (Raleigh Memorial Hospital v. Anderson) appointed a guardian for an unborn child to consent to its mother’s blood transfusions.

             Some might argue that the Supreme Court is simply refraining from taking any position on abortion after Dobbs. But that would not justify ignoring long-standing legal principles that protect unborn children, even if the Court does not want to recognize them as fully human “persons.” Even Roe acknowledged a legitimate interest in preserving what it called “potential human life.”

             Legal protections for a woman’s future descendants can be found in numerous and diverse areas of the law, including:

• Inheritance rights. Trust and estate laws commonly seek to protect the financial interests of unborn and future heirs, even potential heirs not yet conceived. Justice Blackmun in the Roe case acknowledged that “unborn children have been recognized to have rights or interests by way of inheritance or other devolution of property, and they have been represented by guardians ad litem.”

• Workers compensation and wrongful death suits in many cases allow unborn children to be compensated for the injury or death of a parent.

• Social Security and federal employees’ survivor benefits may be available to a child not yet born when his or her parent dies.

• The Federal Employers’ Liability Act allows an apportionment of damages to a child not yet born at the time of its father’s accidental death.

• Representatives may act on behalf of unborn children as claimants under the Aid to Families with Dependent Children program (AFDC).

• Every state has some version of a law against “feticide,” the killing of “wanted” unborn children, and many states now outlaw abortions with narrow exception. With Roe gone, there is no federal right to abortion, so there is no justification for the Court to favor the pro-abortion side in barring the unborn from participating in a case against the FDA.

             Our judicial system assumes that every interested party deserves his day in court in order to achieve a fair result. This foundational legal principle was put on hold in abortion cases after the Roe decision, including when the FDA approved the supposed “safety” of abortion drugs without considering the rights of the unborn. But with Roe now gone, and especially with the preborn having a right to life in many states, there is no reason for the FDA or the Court to disregard the interests of the unborn in evaluating drug safety.

             So why is the Supreme Court still refusing to hear from a representative for the unborn now that Roe is gone? With such an essential party excluded, let’s hope this is not just a show trial.

             Perhaps the justices are tainted by a lingering Roe bias, the ghost of Roe. The fictional right to abortion over so many years has seriously contaminated our legal traditions and blackened the judicial psyche with a warped set of precedents, invented to marginalize the unborn.

             Hopefully, the Supreme Court will still rule against the abortion pills in this case, based on their dangers to the mother. But let’s also hope that the Court will increasingly respect state rights for the unborn and realize what it means for Roe to be gone in their future decisions.

Senate Voting Record

On Cloture Motion to End Debate on Nicole Berner nomination to 4^th Circuit Court – March 14, 2024 – Adopted 48 to 40 (Democrats in italics)

Voting “no” – pro-Life: Britt & Tuberville (AL), Murkowski (AK), Scott (FL), Crapo & Risch (ID), Braun & Young (IN), Ernst & Grassley (IA), Marshall & Moran (KS), McConnell & Paul (KY), Cassidy & Kennedy (LA), Collins (ME), Hyde-Smith (MS), Hawley & Schmitt (MO), Fischer & Ricketts (NE), Budd & Tillis (NC), Hoeven (ND), Vance (OH), Lankford (OK), Graham (SC), Rounds & Thune (SD), Blackburn & Hagerty (TN), Cornyn & Cruz (TX), Lee (UT), Capito & Manchin (WV), Johnson (WI), Barrasso & Lummis (WY).

Voting “yes” – anti-Life: Kelly & Sinema (AZ), Butler & Padilla (CA), Bennet & Hickenlooper (CO), Blumenthal & Murphy (CT), Carper & Coons (DE), Ossoff & Warnock (GA), Hirono & Schatz (HI), Duckworth & Durbin (IL), King (ME), Cardin & VanHollen (MD), Warren (MA), Peters & Stabenow (MI), Klobuchar & Smith (MN), Tester (MT), Cortez-Masto & Rosen (NV), Hassan (NH), Booker & Menendez (NJ), Heinrich & Lujan (NM), Gillibrand & Schumer (NY), Brown (OH), Merkley & Wyden (OR), Casey & Fetterman (PA), Reed & Whitehouse (RI), Sanders & Welch (VT), Kaine & Warner (VA), Cantwell & Murray (WA), Baldwin (WI).

Not voting: Sullivan (AK), Boozman & Cotton (AR), Rubio (FL), Markey (MA), Wicker (MS), Daines (MT), Shaheen (NH), Cramer (ND), Mullin (OK), Scott (SC), Romney (UT).