As reported previously, North Dakota Catholic Bishops Paul A. Zipfel (Bismarck) and Samuel J. Aquila (Fargo) flatly refused to endorse a bill criminalizing abortion which was introduced in the North Dakota House of Representatives on January 10, 2003.

House Bill 1242,introduced by Representative Sally Sandvig (D-Fargo) at the request of Fargo pro-life attorney Peter Crary, creates a new section of the North Dakota criminal code: “A person is guilty of a class AA felony if the person intentionally destroys or terminates the life of a preborn child.”

News of the Bishops' position provoked lively discussion on the internet, including Google Groups, Catholic Family Radio, and Freerepublic.com. Traditio.com, an orthodox Catholic website, did not mince words about mincing babies ("New Order Bishops Sanction Murder"). A former student of Bishop Zipfel emailed the diocese in dismay.

Walter Weber, Senior Litigation Counsel with the American Center for Law and Justice, gave the Bishops the benefit of the doubt. Why were they not supportive of HB 1242? "Presumably because including the mother is practically unnecessary, historically of little significance, and currently a huge lightning rod for pro-abortion propagandists."

Mr. Crary's goal, however, was to up-end the abortion holocaust morally and practically by providing the same degree of protection to the unborn child that is afforded a born child. He sought "absolute justice," for the unborn to counter the absolute injustice of abortion-on-demand. Anything less would compromise the full humanity of the unborn. "The unborn child, "he explained, "is as human as its parents and deserves the same legal protection — or greater."

Read Mr. Crary's essay "Abortion as a AA Felony".

An October, 2001 article in the Fargo diocesan newspaper explains that the Bishops deliberately adopted "the incremental approach"  to avoid the "right-wing extremism" label. The writer, Christopher Dodson, Executive Director of the North Dakota Catholic Conference,  boasts that this approach "kept the pro-life movement alive in the face of great opposition." (Commentator Jim Rudd disagrees, labeling such compromise tactics as complicity with abortion. See his article "Christians Murdering Babies".)

Previously, on December, 12, 2000, the Bishops had issued a "statement on legislative proposals seeking to prohibit abortions."

Efforts at restricting abortion, however, must be reasonably calculated to that end, have a realistic possibility of withstanding constitutional scrutiny, not jeopardize existing pro-life policies, and never punish the woman who, having had an abortion, is a second victim.

This defeatist policy of deferring in the legislative arena to Supreme Court decisions creating the abortion holocaust made the Bishops automatic opponents of any legislation to outlaw abortion. It is not surprising, therefore, that some challenged their sincerity.

We cannot reasonably and logically hold both that abortion is the killing of a child and that a mother who commits this act is blameless.

Those bishops cannot be unaware of these things. It’s just not plausible. And for those reasons I reiterate that their reason for opposing the law is transparently specious. I suspect their game might be to sabotage effective laws by supporting weak ones.

Comment on FreeRepublic.com. As Andrew Vanyo has written, a person cannot logically be for something and against it at the same time: for overturning Roe and also in favor of not challenging it. Pope John Paul II leaves little room for accommodation with Roe: "In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it[.]" Evangelium Vitae ¶ 73.

Judiciary Committee Hearing

On Wednesday, January 12, 2003, the House Judiciary Committee held a two-hour hearing on the bill. The first hour was set aside for proponents of the bill, the second for opponents. As is common in legislative hearings (or in court cases), those supporting the opposing positions seated themselves on opposite sides of the room. That pattern obtained in the hearing room.

To the right of the podium were the supporters of the bill: Attorney Peter Crary, individual pro-life citizens, a spokesman for the American Life League and the Executive Director of its North Dakota affiliate.

On the other side, sitting behind and to the left of the podium was the speaker for the Fargo abortion mill and also His Excellency, Paul A. Zipfel, Catholic Bishop of Bismarck as well as the Executive Directors of both North Dakota Right to Life and the North Dakota Family Alliance.

Proponents of HB 1242

Mr. Crary distributed to the Committee a letter written by Notre Dame Law Professor Charles Rice endorsing HB 1242. "I have studied the bill, " Professor Rice wrote to Rep. Sandvig, "and congratulate you on its introduction."

After presenting an impassioned plea for complete justice for the unborn, Mr. Crary commented that his son, a 19-year-old Marine fresh out of boot camp, had just been shipped out to the Persian Gulf the night before. He challenged the committee: "Why should he risk his life to defend the right to kill babies in Fargo?"

The Assistant Director for Public Policy at the American Life League in Stafford, Virginia, followed with a careful dissection of the arguments set forth by the North Dakota Catholic Bishops. Their position that the law should not penalize the mother who kills her unborn child, he stated, is "a political opinion, not a teaching in faith or morals." Furthermore, "it actually violates the clear teaching of the Catholic Church."

In the words of Fr. Tom Euteneuer, President of Human Life International, insisting that there be no penalty for the mother whatsoever is to "endorse the situation of decriminalized abortion that Roe v. Wade gave us."

The American Life League representative termed it "unprecedented" for a Catholic Bishop to testify in a legislative hearing against a bill to outlaw abortion.

Martin Wishnatsky, a Harvard Ph.D. and a resident of Fargo, followed with sober observations about the inevitable penalty for tolerating the shedding of innocent blood.

It is not the abortionist, nor indeed even the Supreme Court, which shall bring the wrath of God on America. It is the consent that we as citizens of this state give to their acts and decrees by allowing these practices to continue that will seal our judgment.

He emphasized that HB 1242 "creates legal equivalency between the born and the unborn," thus erasing "the line of demarcation between person and non-person." "We can bury Roe v. Wade today," he concluded, "or we can endorse it. We cannot do both."

The North Dakota Life League, although requesting a lesser degree of felony for the mother, endorsed the bill "because we must consider the preborn child first and foremost."

Opponents of the Bill

Bishop Zipfel stood up first. Calling the bill to outlaw abortion "inconsistent with what it means to respect life," he argued that it was unacceptable to impose criminal penalties on the mother of the baby. Echoing the Bishops' position, and also opposing the bill, were Stacey Pfliiger, Executive Director of the North Dakota Right to Life Association and Christina Kindel, Executive Director of the North Dakota Family Alliance, an affiliate of Focus on the Family. "What is the correct means to ending abortion?" she asked. "We do not believe the mother should be criminalized. We oppose this bill because of its approach, its methodology."

Carol Sawicki, wife of a Physics Professor at North Dakota State University, and an abortion mill worker, testified that the clinic employees and the abortionist were "compassionate, caring and generous." Carol Two Eagle gave a classic "pro-choice" argument for letting women kill their children without interference. If a woman is competent enough to raise a child, she argued, then she also has the competence to kill it.

Bills such as HB 1242 make women — who are productive intelligent adults, less important than something that is not yet born, which is not yet productive, and which is not intelligent.

Read the testimony of Bishop Zipfel, Stacey Pfliiger, Carol Sawicki, and Carol Two Eagle.

For a commentary, see "Truthified" testimony of Bishop Zipfel.

Committee Vote

Later that day the Committee voted 11-2 against recommending passage of HB 1242. Only Pat Galvin (R-Hazen) and Bette Grande (R-Fargo) voted in favor of outlawing abortion in North Dakota. The next day articles appeared in the Bismarck Tribune ("Abortion Bill Creates Strange Bedfellows") and in the Forum (Fargo) ("Panel Rejects N.D. Abortion Ban Bill").

Floor Vote

Under the procedural rules of the North Dakota legislature, all bills, whether recommended by the Committee or not, come up for a floor vote. Although there were rumors that an attempt would be made to table the bill, HB 1242 came on for a final vote before the House of Representatives on the afternoon of Tuesday, February 18, 2003. Just prior to the vote Mr. Crary and the American Life League sent final pleas to the legislators.

Duane DeKrey (R-Pettibone), chairman of the Judiciary Committee, argued against passage. Rep. Jim Kerzman, though pro-life at heart, said the bill went "too far." Sponsor Sally Sandvig did not plead for the unborn, but instead the right of a constituent to bring a matter before the Legislative Assembly for consideration. She did conclude, however, that the matter was in the hands of God, and that he was a "God of miracles."

If this bill passes, it will not be because of anything I have done. It is in the hands of a higher power than myself. I have no control over the results. I ask you to vote your conscience on this bill. I realize it will take a miracle for this bill to pass, but then I'm not in charge of miracles.

HB 1242 failed 13-79.