1988 Massachusetts Ballot Question, Legal Brief and Strategy
John C. Rankin
[excerpted from First the Gospel, Then Politics …, 1999, Vol. 2, not published]
Having tested the question in the 1987 survey concerning the biological origins of human life, I then organized the Commonwealth of Massachusetts for a “public policy referendum” in 1988. It used the exact same ten words of the survey question, but only called for positive responses, as expressed in Resolution #2 I have now prepared for the U.S. Congress and the Several States, as already cited:
In biological terms, when does an individual human life begin?
Mark a cross X in the square next to the answer you prefer. Only vote for one.
[ ] A. Conception.
[ ] B. Viability.
[ ] C. Birth.
[ [ D. Write-in: specify a different biological term _____________.
Massachusetts allowed legally non-binding referenda to be placed on the ballots, either per state representative district (160 in the state) or per state senatorial district (40 in the state), if enough registered voters petitioned for it. A question can be petitioned to appear on the ballot of just one district, or many.
We chose to organize per representative district, which required 200 validated signatures from each district. I was a complete novice at political organizing when I began. The laws governing these referenda also limit the time available to gather the signatures, to about three months, in the spring and early summer of the election year. Nonetheless, we got a grass-roots organization going, with almost no money (I think we were only able to raise about $18,000 total for the political committee that sponsored it).
We were active in most of the districts of the Commonwealth, and by the deadline, we qualified in 105 districts. Had there been another three or four weeks, I believe we could have had 155 districts qualify, and perhaps in the other five as well (the only districts where we did not yet have volunteers). A year after the fact, I learned that this was the largest public policy referendum drive in Massachusetts history. The largest prior effort qualified simultaneously in 61 districts.
As we gathered the signatures, I had many reports from the representative districts that an average of one-third of those who signed the petitions considered themselves to be politically “pro-choice,” and they signed because they thought it was a fair question. When such petitions are submitted by other groups to the town and city clerks for validation (confirming that the signers are presently registered voters in the town where they live), about 70 percent on average are validated. We had such a well-disciplined group of volunteers, that our validation rate was 93 percent. We turned in many forms that were 100 percent validated, and a member of Secretary of State’s office said he had never before seen that happen.
When the petitions were turned into the Secretary’s office on August 3, 1988, one member of the staff was astonished. He said to me privately, “How did you gather so many signatures without us knowing about it?” I then said, “Well, I checked out all the petition forms in the spring from your office.” He still was miffed, in that he had heard nothing about it, whether in terms of publicity or media reports, during the process of the signature collections. So I said, “Well, do you go to church or listen to Christian radio?” He sighed.
We were so grass-roots that we were off the radar screen of the Massachusetts political establishment. We walked and did not fly. Then he asked, “Well, how did you gather so many signatures from all these districts? How many paid signature gatherers did you employ?” This was news to me. I did not know, at that time, that there was such a thing as people who could and would be paid to collect signatures for a ballot initiative.
So I told him so. His eyes widened, “Then how did you gather the signatures?” I told him we had about 900 volunteers, from a committed core on outward to those who helped just a little (and they included those who gathered signatures in districts that did not qualify by the deadline). He was blown away, and said it was the largest grass-roots volunteer effort in the state he had ever seen.
This part of the story is worth retelling for one simple reason – pro-life Christians are the most grass-roots political force in the nation. We can do, with little money, what other political partisans cannot do with large financial resources. As well, in the process of gathering the signatures, our volunteers were consistently strengthened in their faith and pro-life convictions, as they shared with people on the streets, and saw many “pro-choice” people open up to the Christian and political witness (first the Gospel, then politics…). Our volunteers found the question’s simplicity, and its theological and political precision so compelling, that their confidence grew easily. They learned by street-level experience how powerful this question can be at reversing the reversal in the abortion debate today.
In preparing for this initiative, I was informed that the sitting Attorney General would do his best to keep it off the ballot. James Shannon was a former board member of Planned Parenthood and as staunchly pro-abortion as any. Also, coincidentally, Governor Michael Dukakis was then running for president, and for years he held the position that he “doesn’t know” when a human life begins, using Roe’s logic as cover. The Attorney General had a constitutional duty under Massachusetts law to review all “public policy questions” to see if they are truly concerns of public policy. When I was researching this, I came across a public policy petition in the earlier part of the century where a group of people had gathered enough signatures, asking the authorities to require a certain man to paint his barn, because it was an eyesore (or something like that). The Attorney General blocked it – it was not a matter of public policy.
The day after the validated petitions were submitted, August 4, 1988, I wrote Mr. Shannon. I outlined for him the nature and rationale of our question and stated up front that I knew him to be in favor of legalized abortion. I also said how we were following Roe’s language and the 1981 U.S. Senate hearings as precedent for seeking to determine if there was or was not a consensus on the biological origins of an individual human life. As well, I outlined why we chose the multiple-choice format, its precedence in a 1970 state ballot initiative, and why we did not include an “I don’t know” option. I explained that we wanted a positive response to the question, not a negative one, thus we did not choose a yes/no format either.
On August 17, I received a phone call from an Assistant Attorney General, Paul Lazour. He wanted a legal brief from me arguing my case. This is remarkable as I look back, for I am not an attorney, and did not realize how unusual this request was. Why ask for a legal brief unless there is a predisposition on the Attorney General’s part to block the question? For otherwise there is no reason for one. Also, it would give the Attorney General more advance knowledge of my position before he wrote his decision. And given the power to live in the light, I was glad to. That is the innocence of the dove – I had yet to learn the shrewdness of the serpent, that in Jesus’s definition of terms, works with such true innocence and openness (cf. Matthew 10:16).
Also, in the phone call, Mr. Lazour asked me if I were willing to consider the possibility of adding two further options to the multiple-choice question. The first option he offered was “I don’t know,” and the second option was, “No, I do not want to so instruct my legislator.”
When I heard this, I was convinced that intellectually and politically, the Attorney General’s office was scared. The Civil Liberties Union of Massachusetts (CLUM) had already written his office, urging him to block the question from the ballot. Also, back on August 4, the day after I had submitted the petitions, I had to return to the Secretary of State’s office to photocopy one petition sheet that had been overlooked. When I walked in that morning, I was surprised to see about one dozen women pouring over all our petition sheets.
I was a political novice, and assumed that it was some standard procedure, and that these women were employees of the Secretary of State’s office. Only later did I learn that they were volunteers from the Boston chapter of NOW. The word about the petitions had apparently spread very quickly, from within the Secretary of State or Attorney General’s office, to the entire abortion-rights establishment in the state.
We also learned later, that within hours, they had mobilized to oppose this petition drive they had known nothing about. We learned this from a third party who coincidentally learned of it from a first-hand inside source. I never sought to learn inside information from those who worked against us – I have no agenda for that. I trust God’s sovereignty to know what I need to know, confident that the power to live in the light will dispel the darkness of occultic ethics. With regard to our petition drive, the “pro-choice” elitists were deeply afraid of the power of informed choice and “the consent of the governed.”
Once when I was in front of Preterm abortion center two years later, talking with an impassioned activist from NOW, she told me that she was one of this group at the Secretary of State’s office that day, and that they were checking for false signatures. It appears that they were so astonished and frightened by our success at gathering signatures, that there “must” have been fraud involved. This NOW activist in fact told me how they discovered much fraud among our petitions, so I asked her if NOW ever challenged even one of the validated signatures. At this she changed the topic. Not one signature had ever been challenged.
But whereas our theological, intellectual, and ethical homework, and political organizing, were in place for the petition drive, we were not prepared a) financially, b) legally in terms of fending off the power of bully politics, and c) most importantly, in terms of intercessory prayer.
In Luke 14:28-33, Jesus gives two parables that I learned the downside of in this process:
“Suppose one of you wants to build a tower. Will he not first sit down and estimate the cost to see if he has enough money to complete it? For if he lays the foundation and is not able to finish it, everyone who sees it will ridicule him, saying, ‘This fellow began to build and was not able to finish.’
“Or suppose a king is about to go to war against another king. Will he not first sit down and consider whether he is able with ten thousand men to oppose the one coming against him with twenty thousand? If he is not able, he will send a delegation while the other is still a long way off and will ask for terms of peace. In the same way, any of you who does not give up everything he has cannot be my disciple.”
Since I came to know Jesus, I have never hesitated to give up everything in order to follow him. But there was a wisdom I lacked in what I sought to do in Massachusetts in 1988. Whereas I succeeded well, by God’s grace, in imparting the vision for the multiple-choice ballot question at the grass-roots, I came up empty handed in trying to get responses from key pro-life politicians. We were financially marginal at every step, and not wise to the realities of political partisans who will be as dishonest as they have to be to maintain their power.
But especially, I was completely unprepared for the demonic assault that began immediately after the presentation of the petitions to the Secretary of State’s office. We had very little organized intercessory prayer in place, and thus we were made vulnerable to the political bullying of the question off the ballot, and the subsequent corporate bankruptcy of the pro-life group I then headed. The spiritual dimensions were remarkable, as I look at elsewhere.
I did not count the cost in terms of our financial ability to build this “tower,” to apply the words of Jesus’s first parable above. Had I been wiser, I would have just organized the petition drive in a half-dozen representative districts on the North Shore where I then lived. Thus I would not have exhaustingly worked up to the deadline to organize the whole state.
Rather I could have collected the signatures in those several districts in short order, and had the time to focus on prayer and fund raising. Thus I would have been able to patiently learn the political territory ahead of time, and had I done so, we could have won against the political bullying that came our way. Then we could have done the rest of the state the next election cycle, with success already in place. I bit off more than I could chew. In terms of Jesus’s second parable above, the battle is applicable to spiritual warfare in part, and I was ignorant to the army opposing me in the heavenlies. We must know our enemy’s strengths and weaknesses before engaging in war, and our enemy is the devil and his demons.
But the Attorney General’s office was scared when Mr. Lazour called me on August 17, 1988. When he proposed the extra options, I knew we held the high moral ground. I answered by saying that a) I have no authority to change the petitions ex post facto, that nearly 26,000 registered voters had signed, a point of law which he knew; and b) even if I could do so, I would not. But I still said I would get back to him, which I did in a letter the following week.
I prepared a “legal brief” of sorts (something I learned formally how to do later) for the Attorney General, and in my letter to Mr. Lazour I specified how it was the very “I don’t know” posture of Roe which we were challenging, as well as challenging the use of negative responses such as the second option he offered us. On the Attorney General’s part, this was all calculated as he prepared to rationalize the blocking of our question. He knew that his position in support of Roe was based on its morally and intellectually anemic pretension of ignorance, and that my question exposed the central lie of Roe.
Now it might have been funny to see the abortion-rights partisans organize a political campaign against our ballot question, saying, “Vote: I don’t know!” They would be thus advertising their commitment to ignorance for all to see. But an “I don’t know” posture is democratically and constitutionally invalid in the sense that we cannot elect an “I don’t know” to public office, and we cannot vote an “I don’t know” statute into law. If we do not know for whom or what to vote, then we simply do not vote – that is the democratic way to register our uncertainty. We then trust in the system where among those who can decide, a candidate will be elected or an issue decided. I was committed to honest and democratically informed choice. (Though sadly, I once saw an initiative in California to allow a “None of the above” option on election ballots – that is how far we have descended from the positive power of informed choice which lies at the root of a democratic and constitutional republic.)
When James Shannon handed down his opinion on September 2, 1988, he said that our question was not properly a “question of public policy,” because a) it was not phrased as a proper form of “instruction,” and b) multiple-choice questions were not permissible.
It is thus clear to me that the Attorney General acted in egregiously bad faith. If his opinion were truly a legal one, and not motivated by political bias, then:
- Why did his office offer me a phrase with the words, “instruct my legislator,” if in fact he believed it was not a proper form of “instruction” to begin with;
- Why did his office seek a legal brief from me ahead of his decision,unless he were plotting to block the initiative, and he wanted to gain a preview on how to preempt my argument; and
- Why did his office offer me two additional choices if in fact he believed that multiple-choice was invalid?
Thus, I needed to appeal his decision, and to present a full legal brief making my argument. Accordingly, with no money in hand, I sought legal counsel to file lawsuit against the Commonwealth. I did all the research myself, and we heard through the grapevine that the Attorney General expected us to win in court. They put a number of Assistant Attorneys General on the case against me, and pulled together a amalgam of legalese in the September 2 opinion to deny us our civil rights.
We appealed directly to the Massachusetts Supreme Judicial Court. In my legal brief, I answered the Attorney General’s September 2 opinion and argued that our proposed question was a) fully “an instruction on a matter of public policy,” b) it provides for the “affirmative no” in a comprehensive manner, and c) multiple-choice has both constitutional warrant and specific precedent. In order to grasp how morally and intellectually deficient the abortion-rights position is, it is helpful to walk through my argument that the Attorney General did not face head on – all he could do was self-aggrandizingly employ the power of his office against us.
The Legal Argument
Here then is the substance of my legal brief:
A. Definition of Public Policy
Any discussion of “public policy” is rooted in the Massachusetts Constitution, beginning with Part 1, Article 5:
“All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.”
This Article is explicit: we the people are self-governed, and as such it is we who define the terms of how and through whom to make public policy – the nature of representation in a democratic republic. This is congruent with a) the “Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts,” and b) the Declaration of Independence and its definition of unalienable rights and “the consent of the governed.” Thus, the Massachusetts Attorney General is an agent of the “original power” of its citizens, and his power must therefore be in service to the citizens, and not in censorship of them. It is a question of the power to give versus the power to take.
Part 1, Article 7 of the Massachusetts Constitution is likewise broad:
“Government is instituted for the Common Good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family or Class of men:
“Therefore the people alone have the incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.”
In order for the Attorney General to define the proposed question as inimical to public policy, he had to show a) that the initiative was not of the people, and b) that it did not address issues of protection, safety, prosperity and/or happiness. In both cases, he did not do so. Mr. Shannon was in fact in opposition to Article 7, as the common good of the petitioners was not in view, but his political “private interest” was in focus.
Also, his opinion opposed the constitutional “original power” of the people. It was in direct conflict with Yankee Atomic Electric Company v. Secretary of the Commonwealth, 403 Mass. 203 (1988). In this case dealing with a nuclear waste ballot question. Chief Justice Hennessey stated:
“(W)hen certifying petitions as to proper form, the Attorney General is not to be a censor; people should be allowed to speak and act freely through the initiative process. Id. at 211.”
Here the Chief Justice commended Mr. Shannon in his official status for not acting as a censor. But in the case of my question, Mr. Shannon did act as a censor. He censored my public policy concerns under the pretext of “form.” As well, Yankee deals with the initiative petition process for legally-binding matters, and its guidelines are stricter than those concerning the legally non-binding public policy petition we initiated. Cf. Op. Atty. Gen., Sept. 4, 1984, p. 76. Thus, Mr. Shannon’s censorship in regard to our question is that much more egregious.
Mr. Shannon’s opposition to the “original power” of the people is also seen in his September 2, 1988 opinion:
“These failings also destroy the ability of voters to provide instruction through this question. Voters facing this question are not told that they are instructing their legislator, and cannot be certain what public policy, if any, will be affected by their vote” (p. 9).
Mr. Shannon here assumed the “original power” of the people for himself, not allowing the freedom of the people to determine the public policy implications of a question they had petitioned for the ballot. As I had evidenced to him in my brief, our question so clearly instructed public policy matters, for example, with respect to laws on abortion, fetal research, tort, liability, homicide and prenatal care programs, that it was disingenuous for him to suggest otherwise. Mr. Shannon impugned the integrity of the “original power” of the people, apart from which he holds no authority.
Articles 5 and 7 state that the rights to define and initiate concerns of public policy are reserved to the people. Article 19 of Part 1 of the Massachusetts Constitution defines this further:
“The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instruction to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.”
Mr. Shannon’s opinion did not provide any constitutional definition of the “original power” of the people, so his argument from the onset was deficient, and the definitions he brought to Article 19 were likewise deficient. In other words, whereas his opinion speaks of the traditionally “broad view …. of what constitutes an appropriate question of public policy” (Op. Atty. Gen. Sept. 2, 1988, p. 2) he instead applied an unconstitutionally narrow reasoning to the word “instruction” in this context, as a pretense for dismissing our proposed question. Instead of rooting his concerns in the Constitution first, from which to then understand the applicability of the General Laws, Shannon reversed the process and, as we will further see, used unrelated case law to obscure certain General Laws, to obscure and repudiate the Constitutional rights of the people for “original power.”
In Article 19, the language is very broad. Both the “common good” and “instruction” are inherently inclusive terms, assuming etymological breadth and full dictionary options of usage. Also, the words “addresses, petitions, or remonstrances” equal a chain of interfacing definitions, syntactically structured for breadth of intent, and not for the narrowness of restrictions per Shannon’s opinion. My proposed question addressed the legislators through means of petition to give a clear declaration as to whether the “non-consensus” tenet of Roe is sustainable. If the voters were to demonstrate that there is a consensus for “conception,” then the instruction to the legislators is clear – protect the lives of unborn human beings under due process of law.
This instruction was so clear, that the Attorney General and the abortion-rights establishment did everything they could to block the question. The Boston chapter of NOW immediately mobilized to scrutinize the signatures, the CLUM wrote the Attorney General in opposition to the proposed question, Planned Parenthood League of Massachusetts (PPLM) filed an amicus opposing it, and the Boston Globe editorialized against it.
All this concerted energy was invested to oppose our question for one simple reason – it posed perhaps the most important single form of instruction about the abortion debate possible: defining a consensus as to the biological origins of individual human life, and to thus establish a democratic consensus that the central tenet of Roe is in error, and therefore in need of public policy review.
Mr. Shannon then contradicted his own narrowness of definition:
“Prior opinions of the Attorney General and case law have not precisely defined what constitutes “public policy” and the nature of the concept does not readily lend itself to an exact definition … (public policy includes matters of ‘community common sense and common conscience applied to matters of public morals, public health, public safety, public welfare, and the like’)” [ibid. p. 3].
Note how the Attorney General follows in the footsteps of the Roe Court. It admitted that the Constitution does not define “privacy” and “person” in so many words, so too Shannon says the same about the opinions of the prior Attorneys General and Massachusetts case law relative to the term “instruction.” Those who pretend ignorance when they cannot make a positive case for their views, will then fish in a sea of broad definitions for narrow ones to suit their purposes. Then they will accuse us who honor the context of broad constitutional definitions and freedoms as being “narrow.”
It is just like the accusation of unbelievers that the Gospel is narrow in its view of freedom, when indeed its akol tokel is the most embracive and positive definition of freedom in human history, and all the pagan definitions are narrow, and indeed, equal slavery. Shannon steps into Roe’s mold of serving the reversal. The common sense consensus on “conception” and its automatic application to the moral and legal status of the unborn is obvious on the face of it. But Shannon on the one hand said there is inexactitude in defining what public policy is, and on the other hand is exact in excluding our public policy question as outside his inexactitude, even though it is well within his inexact definitions. This is a double-minded standard rooted in moral dishonesty.
As an immediate example of this narrowness of terms, we can look at this section of Shannon’s opinion:
“Generally, it can be said that matters of public policy involve determinations of what governmental action is desirable or necessary for the public interest, as opposed to individual concerns, and as contrasted to statements of fact. Cf. Borden, Inc. v. Commissioner of Public Health, 388 Mass. 707, 721 (1983) [distinguishing between facts, regulations and public policy]” (ibid.).
Later in his opinion, Shannon said that our question calls for a “descriptive” answer as opposed to an “instruction” (as he defines it). This is a subtle way to say that our question is seeking irrelevant “facts,” and not seeking to instruct legislators on matters of public policy. In his citing of Borden, he maintained that there is a distinction between “facts, regulations and public policy,” to thus portray our question as being opposed to a matter of public policy. This was eisegetical fishing.
A review of Borden shows a) there is no such distinction as Shannon alleged, and b) the substance and terms of that case, where applicable, actually sustained our case. It is clear to me that his argument was disingenuous, as was his attempt at narrowness. Borden’s concern with “facts” was limited to whether or not federally established facts for the hazardous nature of formaldehyde and cognate substances can be retested in court, so as to allow producers to buy time and make hassles for those consumers seeking repurchase satisfaction. The agreed to “fact” of its hazardous nature must not needlessly be retested in court, because its established factual nature has already instructed the formation of public policy banning the substance’s specified use.
In my proposed question, we did not seek a needless reiteration of established fact for ulterior purposes. Rather, we sought to establish what Borden defended presuppositionally, namely, an original fact upon which public policy is instructed. It already was an established fact that formaldehyde was hazardous, and the laws defended in Borden were based on such a fact. There has been no democratic attempt in Massachusetts or elsewhere to establish the central fact of the abortion debate, to redress this flaw in Roe, and we only sought to exercise our “original power” to petition for a redress by means of the public policy ballot initiative.
Shannon also cited Griffin v. United States, 500 F.2d 1059, 1066 n.16 (3rd Cir. 1974) to disqualify our proper concern with “fact.” However, the same interdependence between scientific facts and public policy is also found here, consistent with that in Borden which also states, “(a) regulation is essentially an expression of public policy,” e.g., “facts” also express public policy, contra Shannon’s opinion. Op. Atty. Gen., Sept. 4, 1984, p. 377. Thus, the very sources Shannon cites actually contradict his narrow definition of public policy employed to block our proposed question. It may also be noted that his opinion with regard to Borden distinguished between the public interest and individual concerns, as does the Massachusetts Constitution. But not so here – Shannon effectively placed his individual concerns in opposition to the public interest of 25,835 voters, thus clearly reversing reality to suit his ends by implying that my proposed question was not one of public interest.
Thus far in my argument against the Attorney General’s position, I had noted the proper definition of “public policy” as rooted in the Commonwealth’s Constitution, Part 1, Articles 5, 7 and 19, and how our proposed question qualifies. Then I turned to the Massachusetts General Laws, where the relevant part as cited by Shannon is in G.L. c. 53, § 19:
“…asking for the submission to the voters … of any question of instructions to the senator or representative from that district, and stating the substance thereof, the attorney general shall upon the request of the state secretary determine whether or not such question is one of public policy …”
At this point, the General Laws use two key terms, “instruction(s)” and “public policy.” We shall see how Shannon employs “instruction” in an atomistic fashion to obscure the public policy nature of our question. But before the formal definition of “instruction,” there is the need to further embody the definition of “public policy.”
The Attorney General’s opinion also maintained two other qualifications for what equals an instruction concerning public policy:
“In addition, the proposed question must be fit for legislative action … The instruction contained in each public policy question must be consistent with the powers of the Legislature and subject to legislative action or attention (Op. Atty. Gen. Sept. 2, 1988, p. 4).
In further qualifying this opinion, he continued:
“Indeed, a review of prior public policy questions placed on the ballot reveals that such questions consistently have proposed specific legislation or resolutions contemplating a particular governmental action (ibid. p. 5).
I argued that a) our question is fit for specific legislative action or attention, b) it is consistent with the powers of the Legislature and c) Shannon’s opinion did not seek a constitutionally broad definition of public policy congruent with the “original power” of the people. Rather, it sought a restrictive definition with the singular aim of blocking the public policy concerns of the proposed question. I also noted that the nature of specificity, in addressing legislative action, belongs to the people’s initiative. I chose a simple and understated question because everyone knew its public policy implications, and also I did not wish to obscure such simplicity with needless or redundant language. In fact, part of the Attorney General’s statutory duties with respect to ballot initiatives is to be sure they are as simply stated as possible, and my question was as simple as can be.
There are three opinions of prior Attorneys General which specifically applied to my concerns. First, Op. Atty. Gen., Aug. 16, 1939, p. 99:
“The provisions of said sections 19 and 21 dealing with instructions on public policy questions should be broadly construed, so that the representatives of the people in the Senate and in the House of Representatives may be informed, so far as a vote can show it, of the sentiment of voters in their respective districts.”
“The general intent of the Legislature in enacting said sections 19 and 21 was to afford an opportunity to the voters to apprise their senators and representatives of their sentiments upon important public policy questions.” (Cf. 1955 Op. Atty. Gen. 51, where the words “public policy” are not limited or qualified in any way, and are to be construed broadly).
Second is Op. Atty. Gen., Sept. 29, 1978, No. 8:
“Under prior opinions of the Attorney General, it has been determined that the term ‘public policy’ as used in section 19 should not be given a restrictive meaning.” (Cf. 1974/75 Op. Atty. Gen. No. 22 at 63; 1974/75 Op. Atty. Gen. No. 11 at 54; 1968/69 Op. Atty. Gen. No. 5 at 37; and 1966/67 Op. Atty. Gen. Nos. 34 and 77).
And third is Op. Atty. Gen., Sept. 4, 1984, pp. 75-76:
“I am of the opinion that the term “public policy” as used in G.L. c. 53, s. 19, should not be given an overly restrictive meaning … each question must concern an important public matter … On the basis of an unbroken line of precedent, I adopt the broader view and conclude that the question is one of public policy … [In addressing the problem that the Legislature cannot act contrary to the common defense of the nation]: I find it crucial, however, that the petition as filed instruct(s) the Representatives to vote not in favor of legislation but in favor of a resolution. Because it is within the prerogative of the Legislature to memorialize Congress to declare Northampton a nuclear free zone, I have concluded that the question, as rephrased, is one of public policy within the meaning of G.L. c. 53 § 19 …
“Public Policy questions, unlike initiative petitions, are not restricted to providing instructions only on questions of law making; instead they extend to any question of important public concern that may appropriately receive attention or action by the General Court. Under the provisions of the Massachusetts Constitution, Pt. 1, article 19, the people of the Commonwealth have the right to provide instructions to legislators. This power is not expressly or implicitly restricted to any particular type of legislative action, nor does G.L. c. 53 § 19, contain any such restrictions. Accordingly, public policy questions may concern subjects excluded from the popular initiative so long as they remain subjects for some type of action by the Legislature.”
The language here is overwhelming in its vindication of the broad interpretation of public policy according to the “original power” of the people. It cites “an unbroken line of precedent.” It is clear in the opposition to any restrictive impulses, while making certain that the broad question is a fit subject for legislative attention or action.
When I originally filed complaint against the Attorney General’s opinion of September 2, 1988, I cited three bills then pending before the General Court (cf. SJ 88-363; 4898, pp. 13-14). H. 2650 called for a memorialization of the U.S. Congress to establish the rights of the unborn. H. 3396 sought to prohibit the use of state funds to pay for an abortion resulting from rape. S. 411 sought to loosen Massachusetts restrictions on fetal experimentation. In each of these bills, a consensus on the biological origins of individual human life would have provided clear instruction to legislators on the sentiments of the people, regarding the humanity of the unborn, when deciding these issues.
My proposed question had strict parallel to the 1984 Northampton question which the Attorney General ratified. Namely, the declaration of a nuclear free zone did not tell legislators what to do in specific, but rather it properly assumed that the legislators would receive it as a sentiment of the voters, if passed, and would thus be most applicable if the Massachusetts Legislature (known as the General Court) wished to consider a “memorialization” of the U.S. Congress. My question did exactly the same for H. 2650 (1988), which memorialized the U.S. Congress to protect the unborn – plus it applied to much more as well.
Any cursory review of legislative attention or action in the Commonwealth would reveal many bills addressing issues where the definition of biological humanity is crucial. Question 1 on the 1986 ballot dealt with state funding of abortion. In Op. Atty. Gen., Sept. 24, 1976, p. 89, the Attorney General ratified a public policy question which sought to instruct legislators to ratify a Human Life Amendment to the U.S. Constitution. In 1972 there were two different public policy questions, both dealing with attempts to repeal pre-Roe restrictions on abortions (appearing on the ballots of 14 representative districts). Also in 1972, another public policy question appeared on the ballot of 9th Plymouth representative district. It reads:
“Shall the Representative from this District be instructed to approve the passage of an anti-abortion amendment to the Constitution of the Commonwealth which would guarantee the right to life, from the moment of conception, to every human being?”
Here the terms of “conception” and “human being” were central. My proposed question was in the center of what it means to instruct legislators as to a matter of public policy, and with specificity. And especially, I argued in my brief how the question uniquely redresses Roe.
In a nutshell, when it came to a question of what “public policy” is, I argued that we who had petitioned for the question were exercising our “original power” according to the Massachusetts Constitution, Part 1, Articles 5, 7 and 19, and the General Laws, chapter 53, §19. Attorney General James Shannon never engaged the debate on these terms, choosing instead to use opinions of prior Attorneys General and unrelated case law, and out of context to boot, to oppose our “original power.” Shannon’s fear to engage the discussion at the level of the Massachusetts Constitution is similar to the refusal to engage in any question concerning origins. Human abortion opposes the order of creation, and embraces the reversal.
For me this was a wake-up call to my political naïvetè – little did I expect such intellectual dishonesty. I had yet to learn the shrewdness of a serpent to complement the innocence of a dove.
B. Definition of Instruction(s)
Shannon’s contention that my proposed question was not one of “public policy” hinged on his unconstitutionally narrow definition of the word “instruction.” This word proved to be his hinge-point of being legalistic for the purpose of denying the purpose and nature of the laws to begin with. His “opinion” constitutes a letter to the Secretary of State on all the proposed public policy questions in a given election year. He thus stated:
“I have determined that one of the proposed questions transmitted by you is not properly an “instruction [ ] … [by the people] … to their representatives[ ].” Massachusetts Constitution, Part 1, art. 19 … Both the form and content of this question are unprecedented and fatally deficient. Accordingly, it is my opinion that it would be inappropriate for the submitted question to appear on the November ballot as a public policy question” (Op. Atty. Gen. Sept. 2, 1988, pp. 7-8).
In the legal brief, I had already evidenced the public policy nature of the question – its “content.” Shannon’s argument rested on his criticism of its “form.” Though he cited the Massachusetts Constitution, he nowhere defined its use of language – he made no attempt to exegete it on its own terms. As well, his complaint about lack of precedent was disingenuous. The broad freedom of “original power” will certainly, in the course of history, address new questions (e.g., genetic cloning), and the “original power” of the people assumes their prerogative to suit the form to the content in a way they best see fit. Also, the subject matter of our proposed question has overwhelming precedence, and its multiple-choice form has precedence, as I will note.
On the face of it, Article 19 is generic in the use of “instructions,” not restrictive, and G.L. c. 53, § 19 assumes the same, as already noted. Its choice of language expresses breadth of intent in the phrase, “any question of instructions.” The “any” is openly inclusive, not exclusive, and “instructions” as a plural form, reflects the same.
The Random House Dictionary (op. cit.) provides the range of meanings for “instruction”:
“1. The act or practice of instructing or teaching; education. 2. knowledge or information imparted. 3. an item of such knowledge or information. 4. Usually, instructions, orders or corrections … 5. the act of furnishing with authoritative directions …”
Article 19 and G.L. c. 53, § 19 assume that “any” of these forms of instruction are intended as part of the people’s “original power.” My proposed question involved all these five definitions, and the second and third in particular contravened Shannon’s opinion.
Shannon continued as he gives his definition of what an “instruction” is in his September 2, 1988 opinion:
“On its face, the beginning of life question does not provide a representative with any instruction or direction regarding governmental action. Indeed, it does not indicate whether any governmental action at all is contemplated by the proposed question. In addition, the proposed question fails to notify voters what public policy, if any, would be changed or established by a representative seeking to follow their instruction. Providing instruction to a representative is fundamental to properly posing “a question of public policy” under Massachusetts law. See discussion, supra. The proposed question fails to do this. This purely abstract, descriptive question conflicts with the long legacy of past public policy questions and the unambiguous intent of article 19 and chapter 53, which is to provide instructions to the Legislature” (pp. 41-42).
In six capacities, I challenged this argument.
First, as already argued, the question did provide clear instruction – there is no doubt as to the impact of the question if “conception” were ratified by a majority of the voters. And if “conception” fails, then supporters of Roe would be strengthened. I was willing to take that risk because of my prior commitment to democratically informed choice, and because of the necessity of redressing Roe’s non-consensus argument – which for the first time in U.S. history, based an interpretation of law on a statement of ignorance as to the central fact of the case. If truly there was no consensus, then the Roe v. Wade (and Doe v. Bolton) Court should have remanded the cases back to Texas and Georgia, or it should have thrown it out, leaving them in the hands of the several states. This is why my question elicited such concerted opposition, including the Attorney General who used to sit on the board of PPLM (he resigned only because it became an election issue in 1986, because of his potential conflict of interests in ruling on matters concerning abortion – and indeed his bias came through against my public policy question two years later).
Second, Shannon’s specific concern was with a standard phrase employed in other public policy questions, “Shall the Representative from this district be instructed to vote for …?” This is an appropriate phrase, but it is merely one example of how the “original power” of the people is exercised – the freedom to choose the form of instruction. Shannon’s opinion denied me and the other petitioners such a freedom of choice as guaranteed by the Massachusetts Constitution. Also, in 1990, I initiated another public policy question that changed the wording to include “so that the Senator from this district may be instructed to vote for legislation that protects such human life …?” Nonetheless, Shannon also blocked that question, revealing that his concern was not with his narrow use of “instruction,” but with the multiple-choice format, which I will address shortly.
Third, Shannon’s attempt to call the question abstract was without foundation. He created whatever abstractness there is by not quoting the exact question, by rephrasing it as “when does life begin?” This phrasing lends itself to philosophical and theological questions capable of abstraction. This is precisely why I emphasized the words, “biological terms,” and specified the adjectival noun, “individual” – in order to remove all abstraction. It was a concrete question with concrete public policy implications.
Fourth, Shannon used the word “descriptive” to disqualify the question as undescriptive. I evidenced the dishonest use of language here, citing his false dichotomy between facts and their relationship to public policy vis-à-vis Borden.
Fifth, it was curious how Shannon said our question conflicts with the “unambiguous intent of article 19 and chapter 53,” in that he never defined the terms therein. Instead, he placed an eisegetical review of case law ahead of the Constitution and General Laws, and in so doing, he was in conflict with the unambiguous intent of Part 1, Articles 5, 7 and 19 of the Massachusetts Constitution, and G.L. c. 53, § 19, which is rooted in “original power” as I consistently demonstrated.
And sixth, when Shannon wrongly maintained that my question did not have “any” governmental action in view, he was also in opposition to Op. Atty. Gen., Sept. 4, 1984, pp. 75-76, already cited in regard to the nuclear free zone public policy question in Northampton. The General Court was forbidden by U.S. law from taking that instruction and putting it into law, but it was a valid question because of the possibility of a resolution memorializing the U.S. Congress. In the case of my question, it was a clear instruction toward a memorialization of the U.S. Congress for a Human Life Amendment, not to mention the many specific governmental actions of the General Court which the question does provide instructions for, as also evidenced in my legal brief.
Thus, it was clear that my proposed question was fully within the original meaning of the word “instruction(s)” as used in the Massachusetts Constitution, Part 1, Article 19 and in G.L. c. 53, § 19.
C. The Affirmative No and Multiple-Choice
I do not believe that questions about “public policy” and “instructions” were Shannon’s real concern – just a pretext to build a case against what he really feared – the power of informed choice. His real fear was a positive multiple-choice question. The language of “pro-choice” is a ruse for abortion-rights supporters to cloak their true intents.
In his September 2, 1988 opinion, he stated:
“Moreover, voters are instructed to respond through a set of choices that does not allow for affirmatively voting that no instruction on this issue be given. The question’s failure to allow voters to reject entirely any instruction to their legislator on the subject of the question appears to be unprecedented in the history of public policy questions” (pp.42-43).
Shannon’s purpose here was to build a syllogism to disallow our use of multiple-choice: namely, if the question does not provide for an “affirmative no,” and if the question appears to be unprecedented, therefore the use of the multiple-choice format is wrong. This syllogism was false and it was a reversal of reality. The truth is that the multiple-choice format provided for the “affirmative no” in the most comprehensive fashion possible, and it is with striking precedent.
First, the “affirmative no,” as Shannon used it, applies specifically to the yes/no format, and he twisted its deeper purpose against multiple-choice. For example, if someone were to vote “no” to the nuclear free zone question, it is most likely due to his saying “yes” to federal nuclear deterrent policies for the common defense.
Second, the “affirmative no” is not automatically provided for even in the yes/no format. Someone can vote “no” because they do not understand the question, or because they are simply negative to any change in the status quo. Thus, they employ a “no” as a pure “negative” and actually affirm nothing. Affirmation of an opinion is what public policy questions seek to elicit – this is the defining or deeper purpose in view.
Third, multiple-choice is multiple affirmation, and includes a wider range of “affirmative no” as well. The three positive choices and write-in option allow voters to say no to one term by saying yes to another – they negate by an affirmation. But affirmation is the key – an “affirmative” basis for the “no.” If one does not agree with conception as the answer, he or she can choose viability, birth, implantation, nidation, quickening or otherwise.
And fourth, in multiple-choice, a “no” or “I don’t know” option added to it would not be affirmative – it would be purely negative. The “no” Shannon called for with regard to my proposed question would have affirmed nothing, and this is why it did not belong in a multiple-choice format. Shannon sought to impose such a negation on multiple-choice in order to destroy its affirmative power – he opposed the constitutional purpose for the “affirmative no,” which is to provide affirmative instructions to the legislature.
As well, in both yes/no and multiple-choice questions, there is the “no instruction” option for the undecided, uncertain or uncaring. Namely, they can leave the ballot blank. This is the case when voting for candidates for public office. The write-in option is always available, and so too the option not to vote if no satisfactory choice is possible.
I argued that Mr. Shannon knew this, for he offered me two additional choices, both pure negatives, through his Assistant Attorney General on August 17, 1988. The first “choice” offered was “I don’t know,” and the second was, “No, I do not want to so instruct my legislator.” Shannon knowingly offered these in bad faith, because he had already received my August 4 letter explaining how the multiple-choice format was chosen explicitly to challenge Roe’s “I don’t know” posture. Where in all U.S. legal history has “I don’t know” been the basis for interpreting law prior to Roe? Can an “I don’t know” be elected to public office or written as a law? As well, Shannon stated in his opinion that his office cannot “materially alter the substance of the question” to bring it in line with his stated objections, for to do so would violate the signature requirements of G.L. c. 53, § 19. Yet he had asked us to do precisely that on August 17.
In other words, Shannon, consistent with the Roe rationale he supports, wished to deny the people their right for positive choices, because he knows that Roe supporters have no positive term they can agree on or support. They need a “negative no” because they do not have an “affirmative no” or any positive position on the question. By denying our prerogative to frame the question as a positive multiple-choice, he sought by fiat to keep the question from being discussed through public ballot in any fashion that might actually redress the people’s concerns about Roe.
Shannon revealed his true agenda, buried in a footnote:
“A review of past questions reveals no Massachusetts ballot question that offered multiple choices with no opportunity for a voter to reject the entire proposition, except for a question regarding the Vietnam War that was placed on the ballot by a Special Act of the General Court. Chapter 588 of the Acts of 1970. This 1970 question is inapposite here because it was not placed on the ballot as a public policy question under article 19 and G.L. c. 53. In analyzing public policy questions, it bears noting that the applicable statutes assume that a question may be ‘negativized’, G.L. c. 53, § 22, and militate against multiple choices by requiring that a response receive a majority of all votes cast to constitute an instruction.” G.L. c. 53, § 22. (Op. Atty. Gen. Sept. 2, 1988, p. 10, n.8).
First, Shannon contrived the linkage of multiple-choice and the “negative” option in order to disallow multiple-choice as I defined it above. Second, the Vietnam multiple-choice question confirms Shannon’s bad faith directive in that it provided no negative or so-called “affirmative no” choice – only three positive choices were provided. And especially, the Vietnam question is not inapposite – rather it ratified our “original power” to also employ multiple-choice. The very power of the General Court (Massachusetts Legislature) to make a Special Act for the ballot is derived from the people, according to Part 1, Articles 5, 7 and 19 of the Constitution. As such, if the 1970 General Court can employ multiple-choice on a non-binding ballot question, how can the Attorney General prohibit we the people from doing the same?
Third, the uniqueness of the Vietnam question is worth looking at. That same year, a public policy petition placed Question 5 on the senatorial district ballots in the 1st Essex and 2nd Middlesex districts. It was in a yes/no format, but the General Court felt that the nature of the question required multiple-choice in order to fully instruct the legislators, so they passed a Special Act for a state-wide multiple-choice question. The results bear this out: 59 percent of the voters in the two senatorial districts answered “yes,” the United States should immediately pull out of Vietnam. The General Court gave three options as to Vietnam policy: a) immediate withdrawal, b) gradual withdrawal or c) win a complete military victory. The results gave the option “b” of “gradual withdrawal” a 52.5 percent majority, and the “immediate withdrawal” option dropped to 33 percent, a 26 percent reduction. Thus, the multiple-choice format produced a true sentiment that was obscured by the yes/no format.
Our multiple-choice question would also have produced a significant and therefore instructive difference, over and against a yes/no format. Shannon argued that a question on a “theory of when life begins” is permissible if we were to observe his restrictions, i.e., reduction to the “standard” phrasing in a yes/no format (Op. Atty. Gen. Sept. 2, 1988, p. 10, n. 9). But this would allow the “non-consensus” rationale of Roe to hide behind a purely negative “no” answer, and therefore Shannon affronted the “original power” of the people.
Fourth, Shannon said that multiple-choice was inapposite because G.L. c. 53, § 22 assumes a question may be “negativized.” This is wrong. The statute says that a majority of votes must be gained in order to constitute an instruction. This requirement may make the multiple-choice format a more difficult means to gain a “majority,” but neither the multiple-choice or yes/no format guarantees that an instruction will be given. The risk that “no instruction” would be given was undertaken by the 1970 General Court, and in fact, the second option did receive a majority. Shannon, in his disingenuous opposition to our ballot initiative, imposed an ex post facto restrictiveness upon the General Laws. And to do so, he further denied the “original power” of the people by saying that the Legislature’s initiative in multiple-choice is irrelevant, despite the fact they receive their power to do so from we the people’s “original power” to compose various instructions, petitions and remonstrances to our elected officials – “broadly construed.” This broad construction includes the freedom of the people to compose a multiple-choice question, and as evidenced by the General Court doing so in 1970.
And fifth, Shannon said that “(t)he instruction contained in each public policy question must be consistent with the powers of the Legislature ….” (Op. Atty. Gen. Sept. 2, 1988, p. 4). How could our multiple-choice format possibly be inconsistent with our elected Legislature, when they too saw fit to pose a multiple-choice question?
Our case was based simply and honestly on the clear understanding of the Massachusetts Constitution, Part 1, Articles 5, 7 and 19, and G.L. c. 53, § 19 – on the “original power” of we the people. We had given evidence by exegeting the texts themselves, with specific reference to our proposed question. Mr. Shannon had only referred to the Constitution and General Laws vaguely, without defining any of their terms as we have, and he did not responded to our specific definitions. His conduct evidenced an opposition to true definitions of terms, an opposition to the power of informed choice.
Bad Faith and Dropping the Ball
Thus the argument was laid out, and it was never challenged head-on. Rather, in my political naïvetè I assumed there would be an honest response. I did not realize how deeply scared the abortion-rights establishment was of the question. And though the response was rooted in bad faith, I expected my day in court – but did not get it.
In hiring an attorney, I consulted with him to know how to present my argument, and what channels to proceed with to challenge the Attorney General in court. He helped me considerably, and was proud to file my lawsuit with the argument it made. When he received a copy at his office of an amicus, or “friend of the court” legal brief from the Planned Parenthood League of Massachusetts (PPLM), supporting the Attorney General against our public policy question – he knew how deeply the proposed question struck their nerve.
However, my attorney was not specially trained in this type of law, and he did not do two basic steps necessary to present the lawsuit. According to the laws governing “public policy questions” in Massachusetts, if the Attorney General writes an opinion against a question, he can only be challenged in court if it is proved that he acted in “bad faith.” As well, legally non-binding public policy questions are last in the order of petition filings, with legally binding questions taking precedence. What this means is that it’s constitutionality is decided upon only weeks before the November election. There is a very narrow window (about four weeks) in which to prove the “bad faith” charge, take the Attorney General to court, and gain a ruling before the November ballots are printed in early October.
Thus, step one was to gain a hearing before the Superior Court, argue the reasons why the Attorney General acted in “bad faith,” and gain a favorable ruling. Then, step two was to take the case to the Supreme Judicial Court and argue it on its merits – to argue the case I have outlined here. But we never got that opportunity.
I was intellectually aware we needed to show that the Attorney General had ruled in “bad faith.” But I did not know the legal procedure and simply believed that my argument would evidence the “bad faith.” And my attorney was unaware of this specific procedural need. I also know now there was extraordinary witchcraft coming against our lawsuit of the Attorney General, and who knows how it may have helped cause this oversight.
What we did was simply file suit with the Supreme Judicial Court, and they ruled they could not hear the case because we did not formally argue and evidence the “bad faith.” Then, when we re-petitioned the same question in two representative districts in 1996 (with some original petitioners that still lived in the state), we learned that we had no ability to accuse “bad faith” after the 1988 ruling had been handed down. No redress in the system. It was here that a member of the Supreme Judicial Court told us what we should have done in 1988 in terms of process. Thus, the only means remaining for the question in Massachusetts is through the Legislature, and that would require another statewide effort, and the re-creation of a network that became dispirited following the 1988 blocking of the question.
I was also told by political insiders that we had the best case to prove “bad faith” in state history. As I have already noted, James Shannon was a former board member of the Planned Parenthood League of Massachusetts (PPLM), who had to resign that position when he ran for Attorney General in 1986, because potential conflict of interest questions were raised. Due to my August 4, 1988 letter to him, he knew why we phrased the question as a multiple-choice as opposed to a yes/no format, in our desire to redress the “I don’t know” posture of Roe. Yet, when he had an Assistant Attorney General contact me on August 17 with the possible addition of an “I don’t know” and “No, I do not want to so instruct my legislator” answers, he was doing so in bad faith, for he already knew our position.
Had he truly been convinced that a multiple-choice question was invalid, he would have simply ruled so. Rather, he tried to get us to include an “I don’t know” option because that is the abortion-rights argument, and he feared a question that did not allow the pretension of ignorance to be chosen. He knew our use of multiple-choice was constitutionally valid. And his whole legal argument was a smokescreen to hide this reality as best he could. As well, why would we be requested to present a legal brief before the Attorney General’s ruling? This reflects to me a “bad faith” predisposition to rule against it, and to learn our argument ahead of time. Oh, was I politically naïve.
As well, we saw plenty of indications of likely collusion between the Attorney General’s office, NOW, CLUM and PPLM to defeat our question. Had there been the opportunity to have taken sworn depositions on this matter, I would have liked to traced what phones calls began, from whom to the NOW volunteers on the evening we filed our petitions. As well, it seemed to us that the CLUM letter, Planned Parenthood’s amicus and the Attorney General’s brief all shared the same database – in terms of content and structure of thought.
Now we could have asked a question: Does an individual biological human life begin at conception? Yes or no. And with a yes/no format, the Attorney General said he would have approved it. And likely, we would have won by a 60-40 margin. But I did not want the abortion-rights people to argue a negative. I wanted to see what positive point they were willing to argue – I wanted a positive informed choice.
For example, had it been a yes/no question, they could have conducted a campaign saying something like, “Vote No on Question #3 – Keep Church and State Separate!” Or, “Vote No on Question #3 – Say No to Religious Intolerance!” Or, “Vote No on Question #3 – Don’t Let Zealots Impose Their Religion on You!” Or, “Vote No on Question #3 – Don’t Let the Anti-Choice Fanatics Destroy’s a Woman’s Freedom to Choose!” And etc.
Jesus said to the Pharisees at one point:
“Every kingdom divided against itself will be ruined, and every city or household divided against itself will not stand. If Satan drives out Satan, he is divided against himself. How then can his kingdom stand? …
“He who is not with me is against me, and he who does not gather with me scatters” (Matthew 12:25-26; 30).
The abortion-rights movement is likewise divided against itself. Its philosophical unity is only in the power to confuse and negate, to take and destroy, whereas we pro-life Christians should be united in the power to give and the ethics and power of informed choice which lay at the root of the proposed multiple-choice question. My question would not have allowed the abortion-rights movement to unite in negation, but would have exposed their inability to unite in any positive fashion. They could not have said, “Vote Viability,” because they disagree among themselves and cannot make a positive argument for it. The same for “Vote Implantation,” “Vote Birth” or “Vote Quickening” or “Vote 3 Days After Birth” or “Vote Nidation” (for those who know what that means – the point past when twinning is no longer possible, 7-14 days after conception). The only thing they could have done in the face of such a public policy question was to tell people not to vote – which would have increased our percentage of consensus. They could conduct no campaign against it. And my campaign would have been one very simple slogan: “Conception Is It.” We would have then passed out full-color flyers on the science of conception and fetal development.
When I suggest how the abortion-rights establishment might have conducted a campaign on a yes/no question based on their religious bigotry, we have already noted the anti-biblical nature of Roe. But in the 1988 Massachusetts question, we saw it in bold relief. On August 12, the Civil Liberties Union of Massachusetts (CLUM), wrote the Attorney General, asking, ahead of time, that our question not be approved. The letter stated:
“First, the ballot question, as worded, does not pose a question of public policy but instead a question which implicates, for many individuals, religious views concerning the point at which human life “begins.
In our view the government has no proper role making inquiries into its citizen’s views on religious matters, even if those views are expressed in the form of an anonymous ballot. Although the proposed ballot question is couched as a question of “biological” fact, casting the question in those terms cannot conceal the reality that is constitutes, in effect, a poll of the voter’s beliefs on a religious matter.”
Also, Planned Parenthood, in their amicus, stated (in strikingly parallel language):
“There is yet another problem with the proposed question. To many people, the question will necessarily be read to ask ‘in [religious] terms, when does an individual life begin.’ But if the question is viewed as an inquiry into the voters’ religious beliefs, it is equally improper as a ballot question. The separation of church and state mandated by the federal and state constitutions requires that voters not be polled as to their religious beliefs, and that their representatives not be instructed to vote to adopt one religious belief of doctrine over another” (pp. 9-10).
This is remarkable. Even though my question specifically emphasized biological terms, the religious bigotry of these two organizations came to the surface. They knew I headed up a Christian pro-life organization. They had to cast it as a religious question, not biological. Just like the satraps had to plot against Daniel, not on legal grounds, where he was faultless, but in a bigotry against his religion. Able, they believed, to thus incite opposition.
In arguing that our question was really a “religious” one, and that “religious” questions may not be asked, what they ended up saying is that the science of biology is religious. Therefore scientific questions are precluded from the ballot because scientific concerns are really religious (!). Or, religious people and groups are not allowed to ask public policy questions. What this means, if consistently applied, is that religious people (especially those, maybe only those, who take the Bible seriously) are not allowed to participate in matters of public policy except as “secular” citizens – only if they are willing to deny their religious convictions.
This logic also says that since “biology” is “religious” in matters of human abortion, the door is opened to oppose any public discussion of an issue on the grounds that it may be “religious.” This is an extraordinary affront against the Declaration of Independence, the opposite of the “no religious test” of article VI of the Constitution, and the opposite of the First Amendment. It is an attempt at political tyranny and the opposite of the ethics of only Genesis. It reveals a hatred of the Gospel, and we need God’s grace to serve a reversal of this reversal. As well, only Genesis has a positive view of science and the scientific method, and we see the pagan religious ethics in the CLUM and PPLM’s opposition to my question.
The time is overripe to address this question nationwide. It is time to take this multiple-choice question and a) present it to the U.S. Congress for a roll-call vote, b) likewise state legslatures, and c) on as many state ballots as possible. This will be dynamic and revealing a vote as we have ever seen on this issue.
This process would accomplish the following:
- It would demonstrate the consensus that exists at the grass-roots, and could not then be swept under the rug politically as were the results of the 1981 U.S. Senate Subcommittee hearings.
- It would use the power of democratically informed choice to define the central fact of the case deliberately ignored by Roe.
- It would reverse the reversal, serve the true God, life, choice, sex order of creation and thus redeem the language of choice to protect unborn human life instead of destroying it. Thus, we will demonstrate that: “pro-life” = pro-informed choice; and “pro-choice” = anti-informed choice, because it is really pro-abortion rights. Those who oppose such a referendum would paint themselves as anti-democratic, and we will have defined and taken the true high ground.
- It is legally non-binding, only seeks consensus, and therefore it requires nothing in terms of legal change. If there is truly no consensus as often claimed by abortion-rights ideologues, then they can rest easy. There would be no changes in the law, and their full democratic participation has been enfranchised. If there is a consensus, there are also no required legal changes. But we would then have a level playing field based on this establishment of fact, from which we must try to win the hearts and minds of the culture and thus change the law. And the full democratic participation of abortion-rights advocates is enfranchised every step of the way. But neither the ancient serpent, theologically in the Garden of Eden, nor pro-abortion partisans, in the current political landscape, are interested in a level playing field. They only want dominance ceded to them.
- Many “pro-choicers” will see it as an honest question, and we will be in position to begin to win the “middle ground.”
- It allows the “personally opposed but …” people to have the genuine privacy of the ballot box to express their convictions. I believe most will answer “conception,” and emerge with more confidence in their pro-life instincts as part of the true cultural majority. This will strengthen the winning of this “middle ground.”
- No unified opposition is possible, as the framing of the question redresses the dishonesty of Roe. Since abortion-rights partisans are based on Roe’s “I don’t know” posture, they cannot affirm any positive definition apart from conception – for they know “conception is it.” They are a house divided, and have no ability to united around viability, birth, implantation, quickening, nidation or otherwise. They know that once the question gets on the ballot, they will have forfeited their public image of “pro-choice,” and their anti-informed choice position will be laid bare. Their pretension of ignorance will be their strongest suit. Why otherwise do the Massachusetts Attorney General, the CLUM and PPLM, and people like Kate Michelman of NARAL and Patricia Ireland of NOW do their best to avoid such a question?
- It is a biological issue at question, and not an item of religious creed. The only religious issue in this process, and a crucially important one, is whether or not a person’s religious or philosophical worldview allows him or her to embrace a scientifically accurate definition of terms. This will demonstrate that: “pro-life” = an accurate definition of terms; and “pro-choice” = an inaccurate definition of terms.
- Once accurate definition of terms, once the biological definition of individual humanity, are proven in the public domain, then and only then can the real debate begin, and the other issues be addressed – such as male chauvinism, promiscuity, poverty, population, rape, women’s health, deformity, racism, etc. With a consensus in place that “conception is it,” then the campaign that “abortion is the ultimate male chauvinism” becomes center stage in winning the culture to equate women’s dignity and the unborn’s dignity as parallel. The idea of abortion as a woman’s “right” or “freedom” must be demythologized if we are ever to win the legal protection of the unborn.
- If the expected consensus emerges, Roe will have been redressed and its potency neutralized. If then an honest and effective campaign is mounted to educate the public that “human abortion is the ultimate male chauvinism,” we will have cultural authority to argue for the legal protection of the unborn.
- In practical terms, we have to succeed well enough in the process to make human abortion heinous and undesirable to most of the culture, and this too means regaining social opprobrium toward sex outside of marriage. Our work is cut out for us. The first such step is to legally require all fathers, especially those out of wedlock, to be held financially responsible for their child(ren), and thus for the financial well-being of the mother of the child(ren) as well.
- Then a federal law should be passed that requires all abortion providers to offer an ultrasound of the unborn fetus to their patients, with a list of abortion alternative services also provided – thus providing a true reality of informed choice.
- The voters in the states that demonstrate such a consensus will then have both the political and moral authority to call upon their state legislatures and the U.S. Congress to look at the abortion debate with such a consensus in view. This is the sole manner which paves the way for the U.S. Congress to muster the two-thirds majority to call for a Human Life Amendment to the U.S. Constitution, and for the three-fourths of the State Legislatures needed to ratify it. With such a consensus on the biology of conception and the male chauvinism of human abortion in place, current lawmakers can be held accountable or face being replaced. Pro-life Christians in this process will have taken the high moral and political ground at every turn as we have testified to and modeled the ethics and power of informed choice in the face of those who do not. And the unborn will have been honored as image-bearers of God.
Abortion proponents fear informed-choice. Two final anecdotes. In our forum together at Georgetown and on C-Span, I asked Kate Michelman if we pro-lifers have the right to win legal protection for the unborn through constitutional process. She tried to deflect the question but then said “no,” some rights such as abortion are above the law: “Just as you said John, ‘liberty and property.’ ” But I had been arguing “life, liberty and property ….” She excised “life,” which is the nature of human abortion. When I posed the same question in a forum with Patricia Ireland, she said that if I succeeded, “Then your view will become law.” I answered, “And whose view is law now?” She did not give answer. Abortion was made legal by the Supreme Court via judicial fiat, in a mockery of democratically informed choice, its adherents seek to maintain that fiat, and will brook no constitutional process of truly informed choice.
[Click on two non-binding public referenda]