In 2003 the Republican Party gained control of the Texas legislature for the first time since the Reconstruction Era 130 years earlier,1 and has held it ever since. With this new-found majority and a national media buzz around the recent double murder of Laci Peterson and her unborn baby by her husband,2 the pro-life Republican legislature introduced personhood legislation, SB319, which changed the legal definition of an “individual” from a human being who “has been born and is alive” to “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.”
This bill had strong support from all the nominally pro-life organizations (including Texas Right to Life, Texas Alliance for Life, and the Eagle Forum) and was even given double weight on some pro-life legislative scorecards. However, while the bill recognized unborn babies as people it also amended the homicide statute in the penal code, which criminalizes killing “individuals,” to allow mothers and doctors performing approved procedures to murder or assault unborn children. What it gave with one hand it took away with the other.
By this artifice the bill’s proponents accomplished three legislative objectives.
First, supporters could claim the bill had nothing to do with abortion and that its purpose was simply to facilitate the prosecution of people, like Laci’s husband, who have murdered or assaulted unborn babies against the mother’s wishes. This approach enabled them to receive legislative support from members who wouldn’t necessarily support legislation just because it was pro-life.
Secondly, it allowed nominally pro-life legislators who represented predominantly pro-life constituencies to enhance their pro-life credentials by voting for a strong pro-life bill that didn’t stop one murder.
Thirdly, it placated the proponents of abortion exactly because it did nothing to stop or hinder abortions.
And so, a few weeks after Laci and her unborn son Conner’s decomposing bodies were pulled out of San Francisco Bay, only fifteen out of one hundred fifty legislators voted against the bill—and one of them claimed he intended to vote “Yes.”3 Those “No’s” represented the hard-core abortion supporters who were neither moved by the gruesome double murder captivating the nation nor fooled by the hollow protestations of the bill’s supporters that it wasn’t about abortion.
One of those “no” votes, Mr. Farrar, explained himself on the house floor,
If this bill isn’t about abortion, then why is this [i.e., the unborn child’s fundamental right to life] so important to them? Why isn’t this bill a law and order bill that is endorsed by law enforcement groups? The truth is, the goal is to have statutes in place that are building blocks or foundations for future legislation, litigation, and the possible overturning of Roe v. Wade by the U.S. Supreme Court.
If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life is then guaranteed specifically by the Fourteenth Amendment. This is part of an organized nationwide effort to lay these foundations in other states.4
Mr. Farrar was exactly correct. If the new definition of individual that brought abortion under the scope of the murder and assault sections5 of the penal code withstood court scrutiny, future legislators wanting to criminalize abortion simply had to remove the exceptions added to those chapters. Even the plaintiffs in the blatantly immoral and unconstitutional Roe case6 acknowledge that their case collapses if unborn babies are actually people.7 It is also much harder for a future appellate court to find the absence of a law unconstitutional than it is to find a newly enacted law unconstitutional. Thirteen years later, when the public media circus had long moved on to other amusements, the next generation of pro-life warriors, encouraged by similar efforts in other states, seized the opportunity that had been set up a decade earlier.
Important Developments in the Battle
Some may think that a decade was lost in the battle for justice for the unborn. But this is not necessarily the case. Nations have the laws that “the people” collectively want. The AEI’s recently published study on Abortion Attitudes found from their review polling data over the past forty-four years that though most Americans do not want the Supreme Court to overturn Roe v. Wade, they are willing to put some restrictions on abortion. “Majorities of Americans favor notification of spouses, parental consent, and 24-hour waiting periods. They support first-term abortions, but oppose second- and third-trimester ones. They oppose public funding.”8
These polling data on abortion are a very close match with the current laws on abortion. (The same data sets also prove that Americans are fundamentally confused with many believing abortion to be murder while simultaneously believing it should be personal choice).
Politicians can only lead people where they are willing to be led (Prov. 14:28). Although a good leader can move public opinion, it is a slow process. That doesn’t mean the people don’t also bitterly complain about their laws and the political leaders who enacted them. It simply means that even legally valid laws fail when a sufficient plurality do not accept them.
In 2006 South Dakota’s legislature made it a felony for a doctor to perform any abortion.9 At the time there was only one abortion mill in the state. It was open for abortions one day a week and was staffed by out-of-state doctors because Planned Parenthood couldn’t find any doctors in the state willing to kill babies for hire.10 In other words, this is not California or Massachusetts. Nevertheless, the people rejected the new law 55 percent to 45 percent in a statewide petition referendum11 later that year because many felt there should be exceptions in certain cases. To change laws, the hearts of the people need to be changed. That happens when, moved by the prayers of the saints (Rev. 8:3–4; James 5:16–17) and the actions of a dedicated minority, God acts.
In this case, God worked through three longtime friends, Mr. Wesley Thomas, a computer programmer, Mr. Arthur Sisneros, a welding supply salesman, and Mr. Bradley Pierce, a homeschooled attorney practicing in Austin. On learning of the beachhead that had been codified in the Texas penal code and the strategic simplicity with which a law could be written repealing the exception clauses to murder and assault, they sprang into action.
Their first campaign began with the statewide precinct caucuses on Election Day, March 1, 2016. They circulated sample platform resolutions calling for the state legislature to remove the exemptions and make abortion murder. Precinct caucuses in our area are usually sparsely attended (e.g., my family usually constitutes a super majority at our caucus), so many people were able to pass resolutions in their caucuses that collectively came to be known as the Abolish Abortion plank. These precinct platforms were passed up to the county caucuses a couple of weeks later. The fact that the same plank came from a number of precincts ensured its inclusion in the county platforms. After all, who could publically be against ending abortion?
The second campaign was waged at the Texas state convention in June 2016. Mr. Thomas made Abolish Abortion postcards and T-shirts and recruited a small dedicated team that made it seem like Abolish Abortion was the biggest thing going at the biggest political convention in the United States (yes, it’s larger than the national convention). All their work paid off when the Abolish Abortion plank was made the second of five legislative priorities out of over two hundred fifty planks in the platform. The plank called on legislators to “abolish abortion by enacting legislation to stop the murder of unborn children; and to ignore and refuse to enforce any and all federal statutes, regulations, executive orders, and court rulings, which would deprive an unborn child of the right to life.”
From Party Plank to Proposed Legislation
This amazing accomplishment was clearly from the Lord. But the heavy lifting was just beginning. Proposed legislation is typically written by lobbyists, think tanks, foundations, or other policy organizations with extensive legislative connections and the ability to make large campaign donations. Their bills promote their agenda or the agenda of their underwriters.
But why couldn’t a few regular citizens with no money and few connections write a bill to promote the interests of unborn citizens? Without waiting for or caring about the answer, Mr. Pierce led the effort to draft legislation implementing the will of the convention and shepherded it through the legal review by the legislative council. This was a crucial step as no legislator will accept a proposed bill that hasn’t passed the council’s legal review.
The next step was to find a legislator willing to author and file the bill. After approaching a number of house members, Representative Tony Tinderholt agreed to author the bill. On January 11, 2017, he filed HB 948, the “Abolition of Abortion in Texas Act.” It made both doctor and mother guilty of murder for performing an abortion. No exceptions.
“When asked why the bill makes no exception for rape or incest, Tinderholt said he’s ‘a firm believer that God creates children in His own image, regardless of how that child is brought into the world, it’s created in His image, and how can someone want to destroy that?’”12 As might be expected in today’s tolerant culture, he and his family received numerous death threats from those who apparently think murder is the only solution to all their problems.
The next three months were occupied with ongoing efforts to build support for the bill within and without the legislature. Eventually a respectable eleven other members signed on to the radical bill13 as coauthors. Although the committee chair to whom the bill was assigned never held a hearing for the bill, far more was accomplished than usual for a first attempt as again and again throughout the entire campaign the Lord brought success beyond what anyone had expected.
A rally planned in February brought nearly a thousand people to the capital—double and triple what even the staff of the bill’s author and (the staffs of the bill’s coauthors) were expecting—and there weren’t any buses with professional demonstrators, either. Hearings on abortion-related bills were inundated with citizens of all ages willing to wait all day to ask the committee why they were not willing to hold hearings on HB948 and urging them to do so. On three different occasions thirty or more people14 showed up to testify, turning committee hearings on what the committee thought were noncontroversial pro-life bills into extended referendums on the murder of unborn babies.
The truth was proclaimed again and again in compelling and sometimes entertaining ways—abortion is murder and you have a duty to bring the wrath of God on those who shed innocent blood. Several overheard members speak of the sobering effect their testimony had on the committee and the “buzz” created by the fact that a bill making abortion murder with no exceptions had not only been filed but was being boldly promoted.
Can We Overcome the Fatal Disconnect?
On learning that the Committee Chairman holding up the bill was a deacon in evangelical church, one lobbyist engaged his pastor in an email discussion on his role as a teacher and shepherd and received the following answer revealing the astounding misunderstanding of basic law that is representative of much of evangelical Christendom:
I understand my role completely. I understand the Bible. I am completely in favor of life. The problem is not with lack of understanding, or courage. The problem is with the bill itself. HB 948 (which I have read in its entirety) is a complete waste of time. Federal courts have already ruled on this matter again and again. Federal court has control over this situation. Even if a state (such as Texas) enacted such a law, it would immediately be barred because of previous Federal Court rulings.
It is unfortunate that there is such fundamental misunderstanding of our constitutional form of government by teachers.
The U.S. Constitution opens Article 1 with the clear statement, “All legislative power herein granted shall be vested in the Congress of the United States …” The Supreme Court has no legal authority to either make or change any laws. They certainly have no authority to change the laws of Texas or any other state. Their rulings are binding only on the parties before the court. They can only penalize people whom they have determined violated the law, which action is limited to the parties before them.
As badly as our sixteenth President abused the Constitution, at least he understood this much, noting in his first inaugural address:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit [notice he doesn’t say binding on everyone, just binding on parties to the suit] as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. [Entitled to high respect and consideration by others is very different from binding on others.]
And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, [the evil is limited to that particular case because the decision is only binding on that particular case] with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.
At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges.15
We have our work cut out for us. It begins with the church. Lord willing, we will be back for the next legislative session. In the meantime we’ll remember the ancient Christian adage, Ora et labora.
1.https://en.wikipedia.org/wiki/List_of_Speakers_of_the_Texas_House_of_Representatives. Accessed July 29, 2017.
2. “Autopsy: Laci Peterson’s Head Was Missing,” http://abcnews.go.com/US/story?id=90600. Accessed July 29, 2017.
3. Representative Rose, Journal of the House of Representatives of the Regular Session of the Seventy-Eighth Legislature of the State of Texas Being Held at the City of Austin, May 28, 2003 (80th day), p. 4593. See House journal Day 80 (2003-05-28).pdf (710.8 KB).
4. Representative Farrar, ibid., Wednesday, May 28, 2003 (80th day), p. 4591.
5. Texas Penal Code, Chapter 19 & 22. http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.19.htm.
6. Which only applies to the named parties in the case.
7. “The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.” Roe v. Wade, 410 U.S. 113 (1973), pp. 156–157.
8. Bowman, Karlyn, and Heather Sims, Attitudes About Abortion, compiled by the American Enterprise Institute for Public Policy Research, Jan. 2017, p. 3.
9. The text of the law is available here: http://sdlegislature.gov/sessions/2006/bills/HB1215enr.htm. Accessed July 31, 2017.
10. “S.D. Abortion Bill Takes Aim at ‘Roe,’” http://www.washingtonpost.com/wp-dyn/content/article/2006/02/22/AR2006022202424.html. Accessed July 31, 2017.
11. To initiate a referendum, signatures of registered voters equal to 5 percent of the total vote for governor in the last election must be filed within 90 days of adjournment of the legislative session in which the measure was passed. https://sdsos.gov/elections-voting/upcoming-elections/ballot-question-information/signature-requirements-ballot-question-petitions.aspx. Accessed July 31, 2017.
12. https://www.texasobserver.org/texas-lawmaker-no-abortion-access-would-force-women-to-be-more-personally-responsible-with-sex/. Accessed Aug 1, 2017.
13. The Attorney General, considered by many to be pro-life, apparently informed the Committee chair responsible for the bill that the measure was unconstitutional and indefensible.
14. The majority of these were from the two churches attended by Mr. Sisneros and Mr. Thomas.