A judge’s decision to strike down a Texas law banning the killing of unborn child “one piece at a time from the uterus” so that abortion businesses can make more money was the last straw for veteran legal experts.
A new filing in the case submitted to Fifth U.S. Circuit Court of Appeals by Herb Titus of William Olson, P.C. argues that such rulings should prompt Congress to remove judges from office.
Texas lawmakers adopted the law banning the most gruesome of abortion procedures, “dismemberment abortion,” but abortion businesses and activists sued, claiming the law created an “undue burden” for women.
U.S. District Judge Sam Sparks of Austin agreed, even after hearing the arguments of Texas Attorney General Ken Paxton, who is defending the state’s law.
“During a five-day trial this month in district court, we created a record unlike any other in exposing the horrors of dismemberment abortions. No just society should tolerate the tearing of living human beings to pieces,” Paxton said.
The procedure amounts to abortionists tearing unborn children limb from limb while they still are alive.
Texas’ law was in alignment with U.S. Supreme Court precedent that held states may have laws that protect and foster respect for human life, including unborn life.
The friend-of-the-court brief filed by Titus on behalf of several Christian and pro-life individuals and groups points out that the Roe v. Wade decision establishing a legal right to abortion has led to a trade in the body parts of unborn children.
Since the 1973 decision, he says, “the nation has been awash in the blood of innocent babies.”
“By one estimate, in the 42 years since abortion was ‘legalized’ in the 50 states, there have been 57,762,169 abortions in the United States as of January 21, 2015. More recent estimates put abortions now in excess of 60 million,” he writes.
“From the work of undercover journalists, it appears that the abundance of dismembered babies has led to the creation of a thriving market for baby parts,” says Titus.
“Such sales are ‘illegal’ if substantial fees that are charged are for fetal organs, but claimed to be ‘legal’ if, as pro-abortion advocates describe it, the payments are only ‘reimbursement for its expenses,'” he says.
“From the grand jury report on its investigation into abortions performed by just one Philadelphia abortionist, Kermit Gosnell, M.D., we have learned that abortion at least sometimes involves endangering women, severing the spinal cords of babies with scissors, overdosing of patients, spreading venereal disease with infected instruments, and causing at least two deaths.
“Yet the entire blame cannot be placed on the justices who voted for abortion in 1974 (Justices Blackmun, Burger, Douglas, Brennan, Stewart, Marshall, and Powell, all of whom are now deceased). For the abortion industry to prosper, the courts must continue to beat back the pro-life forces in the nation, wherever and whenever they arise. Every state effort to re-establish a measure of control over abortion – whether to the method of killing, or the facilities in which the killing occurs, or otherwise – must be facially challenged in court, and enjoined even before the laws go into effect, based on flexible tests such as ‘undue burden.'”
The brief notes the late U.S. Supreme Court Associate Justice Antonin Scalia criticized “unelected and life tenured judges.”
“Following the law now means judges applying tests fashioned to give them latitude to replace state law with their own personal preferences,” he writes.
Associate Justice Clarence Thomas was right, Scalia wrote, when he said “abortion jurisprudence” would, in effect, trump rules of law.
In a previous case, Scalia forecast a brighter day, writing: “I am optimistic enough to believe that, one day, [abortion case] Stenberg v. Carhart will be assigned its rightful place in the history of this court’s jurisprudence beside Korematsu and Dred Scott [which ruled blacks were not a full person]. The method of killing a human child – one cannot even accurately say an entirely unborn human child – proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion… The notion that the Constitution of the United States, designed, among other things, ‘to establish justice, insure domestic tranquility, … and secure the blessings of liberty to ourselves and our posterity,’ prohibits the states from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.”
Titus comments that Scalia “did not live to see the day that he hoped for, and if federal judges continue to follow the calf-path of ‘undue burden,’ that day will not come until Congress begins systematically to remove federal judges who constitutionally are eligible to serve only ‘during good behavior.'”
It is a constitutional requirement that judges exhibit “good behavior.” Titus also suggests judges need to be educated on the issue.
“If each judge who ruled on a case such as this were to take the time to watch the effect of his decision in the video ‘Silent Scream,’ one must believe that the horror of abortion would abruptly be brought to an end.”
Titus is no newcomer to the courts. He’s has argued before the U.S. Supreme Court and many appeals courts, and has served as a law professor at universities in Oklahoma, Colorado, Oregon and Virginia. He was the founding dean of the College of Law and Government at Regent University.
He also was the 1996 vice-presidential nominee for the Constitution Party, then known as the U.S. Taxpayer’s Party.
Titus worked for the Department of Justice after obtaining his degree, with honors, from Harvard.
His brief to the Fifth Circuit points out that no woman is a plaintiff in the case, only abortion interests, and nowhere are the unborn children represented.
The state law bans abortions “in which a person, with the purpose of causing the death of an unborn child … extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of the unborn child’s body to cut or rip the piece from the body.”
The lower court exhibited a similar “callous attitude” by disregarding “the legitimate and compelling interest of the state of Texas to secure a modicum of humane regard for the baby being sacrificed in the womb of his mother, as ordained by the Supreme Court, but forbade by the law of God,” the brief states.
Titus writes that the state has a serious humanitarian interest in abortion.
“The district court would have us believe that, since the baby is going to die anyway, the state has no serious humanitarian interest in the means by which that baby’s life is taken. Is that true? Does it matter to the people of the state of Texas how a man convicted of capital murder is put to death? Would it be permissible for Texas to return to the days of 13th-century England when men found guilty of treason were ‘drawn and quartered,’ at the end of which, the traitor’s body would be torn in part in four different directions?”