The Banned Brief:
The Pro-Life Brief The Conservatives Rejected
Kerry L. Morgan

Note:  The following Amicus brief was written for filing in the Eastern District of Michigan. An Amicus brief is a legal document written on behalf of a person or organization which presents the Court with a new or different perspective. The purpose of an Amicus brief is not to simply restate the views of the parties in the case but to present an argument which the parties may not have raised. The goal is to help the Court in deciding the case.

The following Amicus brief supports the position of the Michigan Attorney General in his defense of Michigan's Live Birth Definition Act, relating to partial birth abortion. But the brief does more than this: it advances three additional arguments. First, that the power of Judicial Review and doctrine of Stare Decisis require the Judge (Denise Page Hood) to review Roe v. Wade itself in order to determine the fidelity of that opinion to the written Constitution. Second, the brief reminds the Judge that according to the Constitution, its written text, and not a Supreme Court opinion, is the Supreme Law of the land. Third, as a consequence, the Judge must find that Roe v. Wade is unconstitutional, not the Live Birth Definition Act.

The Judge, however, never got the opportunity to be presented with these arguments or reminded of the foregoing, because the Amicus brief was not released for filing by the Amicus organization itself. The pro-family conservative organization found these arguments troubling and declined to allow its name to be affiliated with the brief.

QUESTIONS PRESENTED

This brief for amicus curiae will address the following two questions presented in this case:

1. Does the Legal Birth Definition Act (LBDA) prohibit any Constitutionally protected abortion procedure?

2. Does stare decisis require this court to follow the text of the Constitution, or case decisions having no such textual support?

TABLE OF CONTENTS

TABLE OF AUTHORITIES Table of Contents

Constitution Provisions

U.S. Const., Art. III

U.S. Const., Art. V

U.S. Const., Art. VI

U.S. Const., Amend 14

Cases

Cooper v. Aaron, 358 U.S. 1 (1958)

Graves v. O’Keefe, 306 U.S. 466 (1939)

Holmes v. Jennison, 39 U.S. (14 Peters) 540 (1840)

Marbury v. Madison, 5 U.S. (Cranch) 137 (1803)

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)

Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

Roe v. Wade, 410 U.S. 113 (1973)

Stenberg v. Carhart, 530 U.S. 914 (2000)

Women's Medical Professional Corp v. Taft, 353 F3d 436 (6th Cir., 2003)

Statutes

28 U.S.C. § 453

MCL §14.28

MCL §14.30

MCL § 333.1081 (Legal Birth Definition Act)

MCL § 333.1083(2)

MCL § 333.1083(2)(b)

MCL § 333.1085(a)

MCL § 333.1085(c )

MCL § 333.1085(d)

Michigan Attorney General Opinions

Attorney General Opinion No. 7174, April 4, 2005

Rules

Fed. R. App. P. 29

Fed. R. Civ. P. 12(b)(6)

Fed. R. Civ. P. 56

Treatises and Law Reviews

Black’s Law Dictionary (8^th ed. 2004)

W. Blackstone, I Commentaries on the Laws of England 69-71 (U. Chi. Facsimile edition: 1765)

J. Kent, I Commentaries on American Law 444 (O. Halsted, New York: 1826)

R. Perry, ed., Sources of Our Liberties 6 (ABA Foundation: 1978)

C. Stern, “The Common Law and the Religious Foundations of the Rule of Law Before Casey,” 38 U.S.F.L. Rev. 499, 520-22 (2004)

E. White, “Reflections on the Role of the Supreme Court: the Contemporary Debate and the ‘Lessons’ of History,” 83 Judicature 162, 163 (1979)

BRIEF OF AMICUS CURIAE IN SUPPORT OF DEFENDANTS Table of Contents

INTEREST OF AMICUS CURIAE Table of Contents

Amicus curiae  (footnote 1) is a nonprofit organization sharing a common interest in the lawful construction of the Constitution and laws of the State of Michigan and the United States. Amicus curiae is a civic league, tax-exempt under section 501(c)(4) of the Internal Revenue Code. Amicus curiae is involved in informing and educating the public on important issues of state and national concern, including questions related to the original intent of the Founders and the obligation of courts to show fidelity to the texts of the United States Constitution and the Constitution of Michigan in their deliberations. It also supports organizations or causes with such educational and civil minded goals. Amicus is a statewide, grassroots organization that relies on the participation of like-minded individuals to be actively involved in their community.

The Constitutional issues presented in this case are of great interest to amicus curiae. Amicus curiae seeks to provide this court with a perspective that would not otherwise be presented. That perspective goes beyond the parties’ immediate pleading and practice occasioned by Plaintiffs’ Motion for a Preliminary Injunction or Defendants’ Motion to Dismiss under Fed. R. Civ. P. 12(b)(6). It is rather concerned with the larger and controlling obligation of courts to follow the written text of the Constitution, decline discovery of rights not stated therein, and decline amendment thereof through judicial decisions. It is also keenly aware that lower courts, by and large, do not give due regard to the written text of the Constitution where case law exists purporting to construe it. This is especially true even when, after close examination, such cases are found to be without textual foundation. Roe v. Wade, 410 U.S. 113 (1973) and its progeny are cases in point.

Finally, amicus curiae regards the oath and supremacy provisions of Article VI to be controlling, not judicial declarations to the contrary. Article VI requires that the Constitution, laws and treaties “shall be the supreme law of the land.” Nothing is said about Supreme Court opinions being supreme law. Furthermore, Article VI also indicates that all legislative, executive and judicial officers shall be bound by oath or affirmation to “support this Constitution.” Article VI does not say that all legislative, executive and judicial officers shall be bound by oath or affirmation to “support the opinions of the Supreme Court” simply because they are string-cited by the Court.

Amicus curiae believes that such observations are helpful to this court in considering the legal questions presented by the parties in regard to the LBDA, and in facing the inevitable legal conclusion that it is Roe v. Wade, rather than the LBDA, which is unconstitutional.

SUMMARY OF ARGUMENT Table of Contents

The Legal Birth Definition Act (LBDA) does not prohibit any Constitutionally protected abortion procedure. It prohibits D&X abortions, a procedure sustained in Women's Medical Professional Corp v. Taft, 353 F3d 436, 445 (6th Cir., 2003) which is controlling in this District. It does not prohibit a D&E abortion procedure. The LBDA immunity provisions (MCL § 333.1083(2)(b)), allowing a physician to perform the D&X when necessary to save the mother’s life or prevent imminent threat to her health, also satisfies the rule announced in Stenberg v. Carhart, 530 U.S. 914, 938-939 (2000). Finally, Attorney General Opinion No. 7174, issued April 4, 2005, directing local prosecutors to limit prosecutions accordingly, preempts and moots Plaintiffs’ arguments to the contrary. Accordingly, the Defendant’s Rule 12 Motion should be granted rendering Plaintiffs’ Motion for a Preliminary Injunction moot.

In the alternative, stare decisis requires this court to follow the text of the Constitution, not case decisions having no such textual support. In adopting Roe v. Wade, 410 U.S. 113, 152-53 (1973), the Supreme Court admitted that the right to terminate a pregnancy was not found in the text, and was felt to be discovered somewhere in the due process clause. Roe lacks textual support and, therefore, creates no fundamental right this court is bound to respect. The text and federalist structure of the Constitution, on the other hand, affirm that a state’s exercise of its police power is sustained if rationally based. The LBDA is so based and should be sustained.

Moreover, Article VI establishes the Constitution as supreme law, not Supreme Court opinions. Its oath requirement is to the same effect, binding judges to uphold the Constitution. Absent therein is an obligation to treat judicial opinions as supreme with status equal to the Constitution itself. The power of judicial review, however, remains unaffected. Yet, judicial review is not the power of judicial supremacy. Nor is the power to review cases under the Constitution, a power to either amend or supercede the Constitution’s text through judicial construction. Applying the foregoing alternative arguments to the instant case indicates it is Roe v. Wade, not the LBDA, which is unconstitutional. Pursuant to the doctrine of stare decisis, this court should decline to follow the Supreme Court’s abortion decisions as urged by Plaintiffs, as the Constitution’s text will not support them.

ARGUMENT Table of Contents

I.  THE LBDA PROHIBITS NO ABORTION PROCEDURE WHICH IS CONSTITUTIONALLY PROTECTED. Table of Contents

This court is called upon to initially determine if Plaintiffs have failed to state a claim upon which relief can be granted. If such a claim has been or can yet be stated by Plaintiffs, then in the alternative, the issue becomes whether Michigan’s Legal Birth Definition Act, MCL § 333.1081, et seq, (LBDA) ought to be preliminarily enjoined.

The LBDA at issue is straightforward. Exhibit 1. It defines when a person is “legally born” i.e., a “perinate.” As defined in section 5(d): “Perinate” means a live human being at any point after which any anatomical part of the human being is known to have passed beyond the plane of the vaginal introitus until the point of complete expulsion or extraction from the mother's body. MCL § 333.1085(d). (Footnote two)

Since this action was filed, Defendant, Michigan’s Attorney General, has issued Opinion No. 7174, April 4, 2005. Exhibit 2. The Attorney General stated his opinion that:

the Legal Birth Definition Act, MCL § 333.1081 et seq, which defines when a person shall be considered born for all purposes under the law, has the effect of banning, with certain exceptions, those dilation and extraction (D & X) abortion procedures that require the killing of a “perinate” as defined in the act. The Legal Birth Definition Act does not have the effect of banning the dilation and evacuation (D & E) abortion procedure.

Moreover, he also found that: a physician or physician's agent is immune from criminal, civil, or administrative liability for performing a dilation and extraction (D & X) abortion procedure when in the “physician's reasonable medical judgment and in compliance with the applicable standard of practice and care,” it is necessary to protect the life or health of the mother as set forth in section 3(2) of the Legal Birth Definition Act, MCL § 333.1083(2). (footnote three).

The ostensible objects of both the Act and Opinion 7174 are three fold. First, they intend to affirm that not all abortion procedures are Constitutionally prohibited. A state may ban D&X abortion procedures, but not D&E abortion procedures. Only the latter are constitutionally protected and the LBDA does not prohibit the latter. Second, they are intended to fit within, and benefit from, the Constitutionally tested and sustained decision of the Sixth Circuit Court of Appeals upholding an Ohio statute banning the D&X procedure, with maternal life and health exception language almost identical to the LBDA. Women's Medical Professional Corp v. Taft, 353 F3d 436, 445 (6th Cir., 2003). Third, they are intended to affirm that the LBDA immunity provision (MCL § 333.1083(2)(b)) allowing a physician to perform the D&X procedure when necessary to save the mother’s life or prevent imminent threat to her health, does not offend the maternal health exception announced in Stenberg v. Carhart, 530 U.S. 914, 938-939 (2000).

On the pleadings thus far, this case does not present an attack on the Constitutionality of any Supreme Court case or decision. It does not look to this court to exercise any novel or unusual power. Nor does it require any Constitutional soul searching about a woman’s right to choose or an unborn child’s right to life. In short, it does not reverberate with the cataclysmic woes that Plaintiffs’ boilerplate Motion for Preliminary Injunction portends. What this case does present is simply an opportunity for this court to find that the LBDA and Opinion 7174 fit within the legal boundaries and requirements of Women's Medical Professional Corp and Stenberg.

Such a finding will either warrant dismissal under Fed. R. Civ. P. 12(b)(6), or summary judgment under Fed. R. Civ. P. 56, if matters outside the pleadings are offered and if Plaintiffs fail to offer supplemental affidavits to those already filed, averring credible facts that could prove at trial the existence of an LBDA prohibition on D&E abortion procedures. Judgment should also follow if Plaintiffs fail to show that MCL § 333.1083(2)(b) does not protect maternal life and health, despite its unambiguous language to the contrary. (Footnote Four)

II.     EVEN IF THE LBDA PROHIBITED AN ABORTION PROCEDURE JUDICIALLY DECLARED TO BE CONSTITUTIONALLY PROTECTED, SUCH JUDICIAL DECLARATIONS ARE NOT CONSISTENT WITH “THIS CONSTITUTION.” Table of Contents

Amicus curiae now turn from the particulars of how this case ought to be resolved in Defendant’s favor on a Rule 12(b)(6) motion, to alternative arguments raising issues about the lawful use of law. In this case, amicus curiae are concerned about the unlawful use of Constitutional law by the Supreme Court in Roe v. Wade and its progeny. Amicus curiae are persuaded by the evidence at hand that federal district court judges are not bound to follow under stare decisis, decisions of the Supreme Court when said decisions are unconstitutional, or where such decisions are contrary to a judge’s oath of office under Article VI or 28 U.S.C. § 453.

In Roe, the Court took up the Appellant’s argument. It observed that: “The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment's Due Process Clause.” Roe v. Wade, 410 U.S. 113, 129 (1973). The Court conceded that “[t]he Constitution does not explicitly mention any right of privacy” (Id. at 152), but nevertheless rationalized that “[t]his right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” Id. at153.

The LBDA is before this court today for one reason. Thirty years ago, a majority of the Supreme Court “discovered” and “fel[t]” their way to a woman's right to terminate her pregnancy, a right that the Court conceded did not exist in the Constitution’s text. Fidelity to the written law of the land which, by its substance and organization, leaves criminal jurisdiction over abortion to the states cannot be squared with a “felt” right that had ostensibly, lain hidden and dormant for over 755 years in a constitutional text dating back to the English Magna Carta. See Sources of Our Liberties 6 (Perry, R., ed., ABA Foundation: 1978) (“As early as the fourteenth century the ‘law of the land’ provision [of the 1215 Magna Carta] was considered to be identical with the concept of 'due process of law.’”)

A. Judicial Review Requires Textual Fidelity to the Written Constitution. Table of Contents

Fully 202 years ago, the Supreme Court acknowledged that the government of the United States would be a “government of laws, and not of men.” See Marbury v. Madison, 5 U.S. (Cranch) 137, 163 (1803). To that end, the Marbury Court believed that through the power of judicial review, it could apply the Constitution to the acts of the other branches of government, while remaining itself under the law of that instrument. Thus, Chief Justice John Marshall twice pronounced that the written Constitution is a “rule for the government of courts,” just as it is a rule governing the “other departments” of the federal government (5 U.S. at 179-80).

Under Marbury, the judicial oath of office required the courts to examine the language of the Constitution in order to discover the rule of law stated therein, and then apply that rule to the facts of the case. See E. White, “Reflections on the Role of the Supreme Court: the Contemporary Debate and the ‘Lessons’ of History,” 83 Judicature 162, 163 (1979). To that end, the Court developed a rule of construction designed to ensure that the Court would not stray from the written text:

In expounding the Constitution ... every word must have its due force, and appropriate meaning; for it is evident ... that no word was unnecessarily used, or needlessly added.... Every word appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood. [Holmes v. Jennison, 39 U.S. (14 Peters) 540, 570-71 (1840).]

The District Court for the Eastern District of Michigan is a court governed by the Constitution. In expounding the Constitution, its judges are obligated to give every word written therein its due. Taking the Constitution and Marbury at face value, it is impossible for any judge to give every word of the Constitution’s text “its due” and thereby arrive at a “right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, . . . [which] is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” 410 U.S. at 153. The Supreme Court did not and could not do it in Roe. Plaintiffs do not pretend to do it here. They cite only the Court’s subsequent judicial discoveries because there is no specific Constitutional text to quote. Should the court just “follow” words not in the Constitution’s text, though previously felt and allegedly discovered to be so in Roe, Stenberg and like cases? Yet, it is upon this ephemeral foundation that Plaintiffs assert they are entitled to an injunction and are “likely to succeed on the merits.”

B. Stare Decisis Requires Textual Fidelity to the Written Constitution. Table of Contents

Stare decisis is actually short for stare decisis, et non quieta movere, which means “to stand by things decided and not disturb settled points.” Black’s Law Dictionary (8^th ed. 2004). What could be a more settled thing, than the text of the Constitution written in law? What could be less settled than decisions of courts which turn on facts? The doctrine is a policy proposition and not a fixed rule of law itself. It guides courts to respect principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice. How much more deference, therefore, should courts accord to principles written in the Constitution?

Amicus curiae cannot see how this court can have it both ways. It must, pursuant to stare decisis, either follow the Supreme Court’s pronouncements in Marbury regarding its sworn obligation to do justice through fidelity to the text of the Constitution as written, or it must follow Supreme Court pronouncements in Roe and its progeny that give due regard to rights not in the Constitution’s text, though previously felt and allegedly discovered to be so. There is no middle ground. Under Marbury’s rule, the reserved police power of the states easily sustain the Constitutionality of the LBDA. Under Roe, Stenberg and Taft the result is also the same, but for entirely different reasons as discussed in Section I above --- reasons which avoid, rather than confront, the obligation of this court to give every Constitutional word its due and not parrot the Court when it strays from the written text.

This court will adorn its robes, take the bench and be asked to administer justice without respect to persons, do equal right to the poor and to the rich, and to faithfully and impartially discharge and perform all the duties incumbent upon it “as under the Constitution." (footnote five)

Amicus curiae submits that conformity to this oath of fidelity--fidelity to the written Constitution as it stands in the ever increasing and eclipsing shadow of Roe, is what this case demands. Every litigant is entitled to have his or her case heard by a judge mindful of such an oath.

There are two views of stare decisis at stake–lower courts follow prior cases without regard to their Constitutional grounding, or lower courts follow prior cases that are textually grounded in the Constitution. The struggle is between a view of stare decisis which requires fidelity to the text of the Constitution versus a view which demands this court adhere to the infidelity of textually unsupported case law. “Courts are the mere instruments of the law,” said Chief Justice Marshall, and “[j]udicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect ... to the will of the law.” Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824). The Roe majority, however, did not act as a mere instrument of law. It acted to give effect to the will of a majority of Justices. To claim stare decisis requires one to follow that judicial will, does not give effect “to the will of law” and can neither be squared with Marbury nor a court’s oath of office. In fact, such a position is not consistent with the obligation which stare decisis itself imposes upon the courts to adhere to the Constitution as the supreme law.

C. Stare Decisis Requires a Review of Roe to Determine its Textual Fidelity to the Written Constitution. Table of Contents

It is “the province and duty of the judicial department to say what the law is.” 5 U.S. at 177. Therefore, a duty to say what the law is, and to only say what the law is, does not empower either this court or any other court, high or low, to “discover” and “feel” its way to a woman's right to terminate her pregnancy. This duty to say what the law is, and to only say what the law is, does not empower either this court or any other court, high or low, to “discover” and “feel” its way to a right conceded by the Court itself to be absent from the Constitution’s text, yet which Plaintiffs attempt to maneuver here against the LBDA. The duty to say what the law is, and to only say what the law is, obligates a court, indeed this court, to examine the actual words of the Constitution. It requires this court to show deference to the “form and ... substance” of the “government of the Union” as having “emanate[d]” from the people, not from the Supreme Court. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404-05 (1819). This court may not simply assume the right in Roe emanated from the people through the written constitution. It must look at the written text to identify the right. Stare decisis requires a review of Roe to actually determine its textual fidelity to the written constitution. That review exposes the right as not having “emanate[d]” from the People at all, but rather from the Supreme Court alone.

What is to be made of our government of the People in written form if the doctrine of stare decisis is misused in order to trump, indeed trample down what the People have affirmed in the written text, when that doctrine is used to sustain rights discovered and felt to be constitutional, though nowhere embedded in the document the people approved and adopted?

Courts have largely forgotten this fundamental principle of textual restraint and have misapplied and abused the power of judicial review and stare decisis to alter the federal system. A majority of the Supreme Court has imposed its own political vision upon the individual states by rewriting the Fourteenth Amendment’s Due Process Clause, and then misapplying the doctrine of stare decisis to justify its unconstitutional interpretation of “due process of law.”

Much has been said about Roe in this regard, but Roe is not alone. For example, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), a plurality of the Court invoked “the rule of stare decisis” to retain and reaffirm “the essential holding of Roe v. Wade.” Id., 505 U.S. at 846. In order to accomplish this goal, the Court “reformulat[ed] the doctrine of stare decisis” as “a prop to preserve the power of the Court,” equating its ruling in Roe v. Wade to “the rule of law.” See C. Stern, “The Common Law and the Religious Foundations of the Rule of Law Before Casey,” 38 U.S.F.L. Rev. 499, 520-22 (2004).

To invoke stare decisis in order to insulate the Supreme Court’s prior interpretations of the Constitution — right or wrong — from textual reexamination in this court, in this proceeding, on this record, undermines the rule of law, and threatens to further erect a regime of judicial despotism whereby the validity of the Court’s constitutional interpretations are measured solely by its own opinions.

At the time of America’s founding, the prevailing legal authorities believed that a court was duty-bound to measure the correctness of a judicial decision by a standard outside of its own precedents. See W. Blackstone, I Commentaries on the Laws of England 69-71 (U. Chi. Facsimile edition: 1765). While “the decisions ... of courts [were] held in the highest regard,” Blackstone warned that they were not “law” themselves, but only “evidence” of law, “[s]o that the law, and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law.” Id. at 69-70, 71 (emphasis original). New York’s Chancellor James Kent agreed, asserting that “[e]ven a series of decisions are not always conclusive evidence of what is law,” and where such decisions are shown to be “hasty and crude,” they “ought to be examined without fear, and revised without reluctance, rather than have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.” J. Kent, I Commentaries on American Law 444 (O. Halsted, New York: 1826) (emphasis added).

According to these venerable authorities, this court must not shrink from its task to reexamine, in light of the Constitutional text, the “felt” right of abortion “discovered,” though not found within the text. This Court must undertake this review “without fear” and “without reluctance.” As Justice Felix Frankfurter honestly observed, “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” See Graves v. O’Keefe, 306 U.S. 466, 491-92 (1939) (Frankfurter, J., dissenting).

III.  ACCORDING TO THE CONSTITUTION, ITS TEXT, NOT SUPREME COURT OPINIONS, ARE SUPREME LAW. Table of Contents

Amicus curiae is told by the Supreme Court itself, citing itself, that its opinions are themselves, supreme law. Decisions of the Supreme Court, according to Cooper v. Aaron, 358 U.S. 1 (1958) are the Supreme law of the land. But Constitutionally speaking, opinions of the Supreme Court are not the supreme law of the land for several reasons.

First, amicus curiae finds not one iota in Article VI which establishes any such supremacy. Can this court find it? Can Plaintiffs? Perhaps a word fragment? The Constitution simply grants no “supreme” expository power to the Court. A review of Articles III and VI do not reveal it. What will be found in Article VI is the truth–that the Constitution, laws and treaties “shall be the supreme law of the land.” Nothing is said about Supreme Court opinions being supreme law, let alone being any law at all–nothing, neither a jot nor a tittle. Moreover, Article VI says not one word about judicial decisions becoming supreme law because they are cited repetitively or because of the passage of time. The Constitution extends no power to the Court to claim that its opinions are the sole and exclusive meaning of the Constitution itself.

The judicial power to review cases arising under the constitution, laws and treaties is clearly stated in Article III, section 2, but that power is not the power to rewrite the Constitution itself or declare its opinion supreme. The power to review cases is not the power to establish law, let alone the supreme law. If Supreme Court opinions, including Roe, are not supreme law, then this court’s obligation to follow Roe on that basis is in grave doubt.

Second, the judicial oath binds all courts to support the Constitution of the United States. It makes no reference to supporting the opinions of the Supreme Court as supreme in lieu of the Constitution’s text. A reading of Article VI indicates only that all legislative, executive and judicial officers shall be bound by oath or affirmation to “support this Constitution.” Article VI does not say that all legislative, executive and judicial officers shall be bound by oath or affirmation to “support the opinions of the Supreme Court.” Amicus curiae would affirm stare decisis to the Constitution, but reject application of the doctrine in the service or servitude of judicial supremacy. The rule of stare decisis would have this court stand by the text of the supreme law first, and then examine judicial decisions based upon the text of that rule of law thereafter.

Third, judicial nationalists will no doubt prophesy doom, warning that such reliance on the text of the Constitution will unravel the entire system of law in this Country and inject uncertainty into Supreme Court decisions. Amicus curiae, however, can think of no greater destructive force marshaled against the rule of law than to place all power of exclusive Constitutional construction in one body alone and make the other coordinate, equal and independent branches of the federal government kowtow thereto, or to bind the state governments to decisions upon principles foreign and hostile to the very foundations upon which they are duly erected by the People of the several states.

Fourth and finally, if it is conceded that the Court may freely discover any right or power “in the Constitution” though not reflected in the text, or it can discover a right or power through supposition, implication, or the feelings and sensitivities of the age, then the heart and soul of a written constitution is voided. The Court would then become a living mechanism of unilateral amendment. Article V, however, defines the power of amendment. That power lies solely with the states and Congress. The text gives no power of amendment to the Court.

Contrary to Article V, is Cooper v. Aaron, 358 U.S. 1 (1958). In Cooper, the Court erroneously asserted that its own opinion in Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” 358 U.S. at 18 (emphasis added). This assertion is false because Marbury itself did not recognize the power of judicial supremacy, but rather only the power of Constitutionally grounded judicial review. It is false because the power to review cases is not the power to establish law. The judicial power to review cases arising under the constitution, laws and treaties is clearly stated in Article III, section 2, but that power is not the power to rewrite the Constitution itself. The power to review cases is not the power to establish law, let alone the supreme law of the land. Cooper falsely declared “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” But Roe went further and employed the principle that reference to the Constitution’s actual text is not necessary to the federal judiciary’s supreme exposition thereof.

IV.   ROE v. WADE IS UNCONSTITUTIONAL, NOT THE LBDA. Table of Contents

Amicus curiae has shown that Roe is not based on the Constitution’s text. The Roe Court conceded that its right to choose whether to terminate a pregnancy was not anywhere guaranteed in the Constitution’s written text. It admitted that it felt the right was in there somewhere and that it was or could be discovered in the Fourteenth Amendment. Subsequent cases have simply cited Roe as authoritative and expanded or modified its holding to suit a current majorities’ pleasure.

While the absence of any Constitutional basis for the ruling is striking, the presence of Constitutional propositions regarding the limited power of courts and obligations of judges is abundant. Amicus curiae has also shown that the text of the Constitution plainly states that it is the supreme law of the land and mentions nothing about opinions or decisions of the Supreme Court as occupying that authoritative position. Moreover, it has been shown that the Constitution requires an oath of judicial officers that they will “support this Constitution.” Article VI does not say that all legislative, executive and judicial officers shall be bound by oath or affirmation to “support the opinions of the Supreme Court” as supreme law in lieu of the Constitution. In construing these obligations, Chief Justice John Marshall reminds us in Marbury that each word of the Constitution should be given due effect and that the written Constitution is a “rule for the government of courts,” just as it is a rule governing the “other departments” of the federal government.

Plainly stated, the courts are under a written Constitution, not the judicial embodiment of a living constitution. They are subject to it. Their acts are subject to it. Their opinions are subject to it. Their orders and opinions are subject to it in every way that the LBDA is subject to it or the acts of Congress are subject to it. For some reason, this obvious proposition is considered novel. But if the court is not above the law, nor its equal, then its decisions must be under the law and subject to being found either consistent with or contrary to the written law of the land.

Taking the Constitution and Marbury at face value, it is specious for any judge to give every word of the Constitution’s text “its due”and as a logical consequence arrive at a “right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, . . . [which] is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” Moreover, a line of judicial precedents, no matter how long unbroken, must never “close” the Constitution to reinspection, to ensure conformity to its text. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803). The inescapable conclusion of such a reinspection, without fear or reluctance, is that Roe v. Wade itself and not the LBDA, is unconstitutional.

District courts plainly have the power to declare acts of the legislature unconstitutional. This cannot be doubted because the legislature is a body with limited and enumerated power subject to the Constitution. But the Supreme Court is likewise also such a body. Its powers are limited and enumerated in Article III. Its acts or decisions are likewise subject to declarations of unconstitutionality. Chief Justice John Marshall asks:

To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. 5 U.S. at 176-177.

 Amicus curiae submits that it is likewise “a proposition too plain to be contested, that the constitution controls any” judicial decision “repugnant to it; or, that the” Supreme Court “may alter the constitution by an ordinary act” or decision.

This court has the power to declare acts of the Supreme Court unconstitutional or at least decline to follow such decisions. Amicus curiae is not, however, asking this court to overrule Roe or flaunt its place in the federal judicial structure. Perhaps this court has difficulty, as do amicus curiae, in conceiving its authority as including a power to declare a Supreme Court decision overruled. Moreover, lower courts as courts within the federal system are subject to the orders of higher courts under the superintending control doctrine. But amicus curiae is not urging this court to flaunt any such administrative power. There is no order or writ in place from any higher court directing this court to do or not do a specific act.

What amicus curiae is saying is that upon an examination of the facts and law, this court may lawfully decline to follow Roe and its progeny. Yet, Article VI imposes upon this court the obligation to support the Constitution as supreme and both stare decisis and judicial review impose upon it an obligation to examine Roe’s missing Constitutional underpinnings. This means that in the exercise of its judicial power of review, finding a judicial decision unconstitutional is no more novel that finding an act of the legislature likewise unconstitutional.

CONCLUSION Table of Contents

The Legal Birth Definition Act (LBDA) does not prohibit any Constitutionally protected abortion procedure. It prohibits D&X abortions, a procedure sustained in Women's Medical Professional Corp v. Taft, 353 F3d 436, 445 (6th Cir., 2003) which is controlling in this District. It does not prohibit a D&E abortion procedure. The LBDA immunity provisions (MCL § 333.1083(2)(b)) also satisfies the rule announced in Stenberg v. Carhart, 530 U.S. 914, 938-939 (2000). Attorney General Opinion No. 7174, issued April 4, 2005, directing local prosecutors to limit prosecutions accordingly, preempts and moots Plaintiffs’ arguments to the contrary. Accordingly, the Defendant’s Rule 12 Motion should be granted and the Plaintiff’s Motion for a Preliminary Injunction is moot.

In the alternative, stare decisis requires this court to follow the text of the Constitution, not case decisions having no such textual support. In adopting Roe v. Wade, 410 U.S. 113, 152-53 (1973), the Supreme Court admitted that the right to terminate a pregnancy was not found in the text, and was felt to be discovered somewhere in the due process clause. Roe lacks textual support and, therefore, creates no fundamental right this court is bound to respect. The text and federalist structure of the Constitution, on the other hand, affirm that a state’s exercise of its police power is sustained if rationally based. The LBDA is rationally based and should, therefore, be sustained.

The power of judicial review remains unaffected. Judicial review, however, is not the power of judicial supremacy. Nor is the power to review cases under the Constitution the power to either amend or supercede the Constitution’s text through judicial construction. Reviewing Roe for Constitutional support without fear or reluctance, indicates it is Roe v. Wade, and not the LBDA, which is unconstitutional. Pursuant to the doctrine of stare decisis, this court should either decline to follow the Supreme Court’s abortion decisions as urged upon it by Plaintiffs, or declare same unconstitutional as the Constitution’s text will not support such decision.

Respectfully submitted,

  By: _______________________________

      Kerry L. Morgan

      Counsel for Amicus Curiae,

Dated: May 13, 2005

Footnote one   Back
Amicus curiae hereby certify that no counsel for a party authored this brief in whole or in part, and that no person or entity other than the amicus curiae made a monetary contribution to its preparation or submission. Amicus curiae is not a subsidiary or affiliate of a publicly-owned corporation.  The amicus curiae requested and received the telephonic consents of the parties to the filing of an amicus curiae brief and confirmed same in the form of a letter dated April 11, 2005, from amicus curiae Counsel to the then Counsel of record for Plaintiffs and Defendants.

Footnote two    Back
The statute also defines “live” as when the perinate demonstrates 1 or more of the following biological functions: (i) A detectable heartbeat; (ii) Evidence of breathing; (iii) Evidence of spontaneous movement; (iv) Umbilical cord pulsation. MCL § 333.1085©. The statue also defines an “[a]natomical part” as any “portion of the anatomy of a human being that has not been severed from the body, but not including the umbilical cord or placenta.”  MCL  § 333.1085(a). The “Introitus” is defined as “[t]he entrance into a canal or hollow organ, as the vagina.” Physicians subject to the statute presumably understand basic biological functions and anatomy.

Footnote three    Back
MCL §14.24 and MCL  §14.30 empower the Michigan Attorney General to bind prosecutors and the state agencies on the construction of statutes.

Footnote four   Back
Plaintiffs actually concede that the LBDA contains an “ exception allowing the physician to provide care” to a woman undergoing an abortion, but complain that the law’s exception “ does not allow the physician to provide optimal care in all instances of pregnancy loss.” Memorandum of Law in Support of Plaintiff’s Motion for a Preliminary Injunction, p. 13 (emphasis added). Stenberg, however, does not require such refinement.

Footnote five   Back
This obligation is affirmed in 28 U.S.C  § 453: Each Justice or judge of the United States must take the following oath or affirmation before performing the duties of his office: “I, ___________, do solemnly swear (or affirm) that I will administer justice without respect to persons and do equal right to the poor and to the rich, that I will faithfully and impartially discharge and perform all the duties incumbent upon me as under the Constitution and laws of the United States. So help me God.”