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Feticide Goes to the Supreme Court and South Dakota Becomes First Free State

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Deacon Keith Fournier
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Two events of great importance have taken center stage in the past week. We live in what Pope Benedict XVI called in his first encyclical letter an "anti-culture" of death. This is a slight - but important- nuanced variance in terminology from the past reference to a "culture of death" used by his predecessor of blessed memory, that great champion of life, John Paul II. Pope Benedict will not even call it a "culture" of death. He is correct. The acceptance of the notion that human persons, living in the safety of the first home of the whole human race (the womb) can be treated as property and killed by chemicals, surgical strikes or through the suctioning of brains from a child in the birth canal, is not human. It is evil. Its continued protection in the positive law impedes the building of culture.

It does not matter how the "word smiths" and "verbal engineers" of the extreme abortion movement have spun this horror. It has finally been exposed. Nor, does it matter that cultural revolutionaries have hailed such a horror as some newly found "right" and succeeded in forcing the State to protect it with all the instrumentalities at its disposal. The truth is the truth is the truth. Every procured abortion is the taking of innocent human life. The child, from the moment of conception, is our neighbor. Any "culture" that kills a neighbor in need, is not an authentically human culture. Respect for the fundamental and inalienable right to life is the foundation of ordered liberty. Protecting and respecting the integrity and dignity of every human life from conception to natural death is the foundation of any truly human culture.

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Feticide Goes to the Supreme Court

The eyes of life - loving people turn to Washington, D.C. where the United States Supreme Court has granted review to one of several cases that were used to prevent the Federal ban on "partial birth abortion" from being implemented. Thwarting the expressed will of the American people, three Courts of Appeals, invited into action by pro-abortion zealots, took it upon themselves to prevent the implementation of Federal legislation that banned this horrid act of feticide. It is time to be as brutally honest in our language as the procedure itself is brutally repugnant. It is feticide; plain and simple. The baby is pulled by her head to the end of the birth canal so that her brains can be drained and her skull collapsed causing her death. That is what the forces of abortion on demand are now fighting to protect. That is what they have the audacity to refer to as a "reproductive right!" There is certainly nothing "reproductive" about feticide- and that which is intrinsically evil can never be right.

The Federal ban on this surgical feticide would have ended this barbarism. The Legislation was signed by President Bush in November of 2003. However, in an act of judicial arrogance, the new oligarchy in black robes decided they would intervene. The legal appeals made their way through the system and the U.S. Supreme Court has now chosen to hear the appeal in their term beginning in October. Lengthy Congressional hearings preceding this Federal legislation included the position of the American Medical Association which had convened to study whether this procedure could ever be required to protect the "health" of the mother. Their own "expert" panel "...could not find 'any' identified circumstance" where partial-birth abortion was 'the only appropriate alternative' to preserve the health of the mother." Testimony also indicated that the procedure posed health risks for women. Such risks include cervical incompetence, trauma to the uterus, and lacerations or hemorrhaging.

The U.S. Supreme Court will hear the case and, I believe, reinstate the Federal law. Thus, the continuing incremental restrictions on abortion will continue. This is a welcome turn of events in our human rights struggle to build a new culture of life and civilization of love. The most extreme form of feticide will be outlawed. However, our goal must be clear and uncompromised, the end of legal abortion.

South Dakota to Become the First Free State

The acceptance of the so called "partial birth" abortion appeal pales in comparison to the events that occurred in South Dakota this past week. There, a bi-partisan legislature passed "House Bill 1215". Here are a few excerpts from this excellent piece of legislation:


Section 1.

The Legislature accepts and concurs with the conclusion of the South Dakota Task Force to Study Abortion, based upon written materials, scientific studies, and testimony of witnesses presented to the task force, that life begins at the time of conception, a conclusion confirmed by scientific advances since the 1973 decision of Roe v. Wade, including the fact that each human being is totally unique immediately at fertilization. Moreover, the Legislature finds, based upon the conclusions of the South Dakota Task Force to Study Abortion, and in recognition of the technological advances and medical experience and body of knowledge about abortions produced and made available since the 1973 decision of Roe v. Wade, that to fully protect the rights, interests, and health of the pregnant mother, the rights, interest, and life of her unborn child, and the mother's fundamental natural intrinsic right to a relationship with her child, abortions in South Dakota should be prohibited.

....No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being."

Among the "terms" defined in this legislation we read the following:

"Terms used in this Act mean:

(1) "Pregnant," the human female reproductive condition, of having a living unborn human being within her body throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and child birth;

(2) Unborn human being," an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and childbirth;

(3) "Fertilization," that point in time when a male human sperm penetrates the zona pellucida of a female human ovum."


The South Dakota legislators and the Governor openly acknowledge that this legislation will be challenged and likely struck down in Federal court. However, they hope that the U.S. Supreme Court will then accept the case for review and use it to overturn Roe v. Wade.

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The "talking heads" on television were pontificating on this turn of events all week long. One, Dan Abrams, a fellow lawyer and the host of the "Abrams Report", referred to the action of the Legislature as "... spitting in the face" of Supreme Court precedent. I was appalled by his comment and the arrogance that it revealed. Thank God that brave citizens in the past have taken the fallible Supreme Court to task when their rulings were wrong, such as when they ruled that persons were property before. That is precisely what has happened once again in the wake of Roe v. Wade and its progeny; an entire class of persons, children in the womb, have been relegated to the status of "chattel", personal property, who can be disposed of by those more powerful. They have no voice that can be heard except our own. The actions of the public servants of South Dakota are to be commended!

The sponsor of this excellent legislation, Julie Bartling, is a pro-life Democrat. During the debates she rightly insisted that the child in the womb is "a separate human being, not a piece of tissue....The unborn child demands and deserves protection under our Constitution and under our state laws, and I believe it's now time to abolish abortions in South Dakota." She and other pro-life Democrats and Republicans joined together to hear the cry of the poor and do something about it. They have risen to an historic moment with great courage. They have done what is just and right! They are also a sign of the future of our struggle. The pro-life position will prevail because it is right. It is not Democrat or Republican, liberal or conservative, it is true, it is just, and it is human.

A pro-life Republican, Brock L. Greenfield, noted that advances in technology have revealed the error in one of the faulty bases upon which the Roe opinion rested: "...Given the technological leaps and bounds since 1973, we can conclude with 100 percent certainty that upon fertilization a completely new, genetically unique life, with its own DNA fingerprint, is created. And at approximately 21 days after fertilization, the unborn child's heart begins beating." In one of the most poignant moments of the floor debate in the State Senate he then turned to his fellow public servants and asked: "At what point did you become a living human being ... worthy of protection under the law?"

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The woman whose own sad experience was co-opted by activists and used to usher in this reign of terror, Norma McCorvey, is now one of the most passionate voices calling for an end to legal abortion. A letter from Norma was read during the debate on the floor of the South Dakota Senate urging the lawmakers to "... to restore the legal protection of unborn babies." The only step left in this unfolding story is the signature of South Dakota Governor Mike Rounds on the legislation. He has indicated that he will sign it and we all watch, and pray, that he has the courage to play a part in the unfolding history of the great human rights struggle of our age. His leadership is essential.

Governor, make South Dakota the first "free State" for children in the womb!


In 1973 the U.S. Supreme Court struck down abortion bans across the country. In so doing, they "legalized" the killing of the unborn in all 50 states throughout all nine months of pregnancy. Forty seven million lives have been taken since then in procured abortions. The Court "created" a new "right", somehow discovering it in a "penumbra" around the "right to privacy". Even many of the legal scholars who actually support legal abortion now acknowledge that the opinion is a disaster. It was poorly reasoned and is on a collision course with itself.

I end by using the expression, "Free State" with great intentionality. At another critical time in our Nations history another evil was once "sanctioned" by the Supreme Court, the "owning" of human beings as property. The Court was wrong then it is wrong now. For a while, some States were "Free States" and some were "Slave States." After Roe is overturned, that will probably occur once again. Our work will not be over with the coming demise of Roe v. Wade, it only begins. Our goal is not simply to expose and oppose the current anti-culture of death; it is to build a new culture of life, and a civilization of love to replace it.

These two events move us further along on that long road to freedom.


Deacon Keith Fournier is a graduate of the Franciscan University of Steubenville, the University Of Pittsburgh School Of Law, and the John Paul II Institute of the Lateran University. He is currently a PHD student at Catholic University in Historical Theology. He is a married Deacon of the Diocese of Richmond, Virginia. He practiced law for twenty six years, focusing on pro-life advocacy. He served as co-counsel at the U.S. Supreme Court on four cases, including Bray v Alexandria Women's Health Clinic" which upheld the First Amendment's protection of pro-life speech. Fournier is a popular author, his most recent book is entitled "the Prayer of Mary: Living the Surrendered Life".

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