UNIVERSITY OF
NOTRE DAME
THE LAW SCHOOL

Telephone (574) 631-6627

P.O. Box R
Notre Dame, Indiana
46556-0780 USA

February 10, 2003

Hon. Sally Sandvig
North Dakota House of Representatives
600 East Blvd.
Bismarck, ND 58505

Dear Representative Sandvig:

Peter B. Crary requested that I inform you of my opinion of House Bill 1242, the Preborn Child Protection Act, which you have introduced. I have studied the bill and congratulate you on its introduction.

H.B. 1242 confronts Roe v. Wade on its basic holding, that the unborn child is a nonperson whose life is beyond the protection of the law. Some will argue that it is useless to enact state legislation which contradicts Roe's denial of legal protection to the child. On the contrary, I believe we ought to adopt the approach taken by Abraham Lincoln on the Dred Scott case. That case similarly, denied the personhood of innocent human beings - the slaves. In his debates in 1858 with Stephen A. Douglas, Abraham Lincoln said:

If I were in Congress, and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of that Dred Scott decision, I would vote that it should. [W]e will try to reverse that decision . . . [W]e will try to put it where Judge Douglas would not object, for he says he will obey it until it is reversed. Somebody has to reverse that decision, since it is made, and we mean to reverse it, and we mean to do it peaceably. But Judge Douglas will have it that all hands must take this extraordinary decision, made under these extraordinary circumstances, and give their vote in Congress in accordance with it, yield to it and obey it in every possible sense. Paul M. Angle, ed., Created Equal? The Complete Lincoln Douglas Debates of 1858, pg. 36-37.

It is important to present repeatedly to the Supreme Court enacted laws which affirm the conviction of the American people that Roe is totally wrong and that all human beings, including the unborn, are entitled to the protection of the law.

One of the curious aspects of this matter is that the North Dakota Catholic Conference and the two Catholic bishops of North Dakota, Bishop Samuel J. Aquila and Bishop Paul A. Zipfel, have refused to support your bill because it does not explicitly exclude possible prosecution of the mother. See letter Bishop Zipfel to Mr. Crary, Jan. 20, 2003; letter of Bishop Aquila to Mr. Crary, Jan. 28, 2003. This position makes no sense at all in the context of the history and practicalities of prosecutions for illegal abortions. The bishops ought to support your bill. Even the pre-Roe prohibitions of abortion theoretically exposed the mother as well as the abortionist to prosecution. Through the exercise of prosecutorial discretion and restraint, prosecutions were practically universally restricted to the abortionist who is the real target of legislative efforts against abortion. In principle, the mother is responsible for the death of her unborn child just as she would be for drowning her newborn infant in the bathtub. But an explicit disclaimer of maternal prosecution is unnecessary and could be confusing in a statute such as H.R. 1242. The enclosed 1982 essay by Paul Wohlers makes the point that through the first two centuries of this nation, when abortion was illegal, the mother was universally regarded as a victim of abortion rather than a criminal.

Please let me know if there is any further information I can provide.

With best wishes for the success of your forthright effort on behalf of the most defenseless innocent human beings.

Sincerely,

Charles E. Rice
Professor Emeritus of Law

CER/lp

bc: Peter B. Crary, Esq.