The People v. the Attorney General, January 12, 1989
[bracketed notes on March 14, 2016]
Letter to the Editor/News Release:
This past year, we collected nearly 26,000 validated signatures in 105 Massachusetts Representative Districts, seeking to place a non-binding public policy question on the ballot.
[We did not know until later, but this was the largest public policy referendum in state history, exceeding the prior record of 61 districts at the same time. And over the intervening years, the rules in Massachusetts for non-binding questions have been so tightened, making it nearly impossible to seek what we sought to begin with.]
But on September 2, Attorney General James Shannon blocked the question, and on October 3, the Supreme Judicial Court (SJC) dismissed our call for judicial review. In the SJC’s published opinion on January 4, they said that they have no jurisdictional power to review such matters. Accordingly, Shannon’s opinion was ruled final.
[We, and our legal counsel, did not know that before taking our case to the SJC, we had to first charge the Attorney General with acting in “bad faith” in Superior Court; we may have had the best cases to to so in state history (see below). Rather, we raised the issue in the SJC brief, but at a more low key level. And once the SJC ruled, it precluded further appeal on our part (we tried in 1994), even to start at Superior Court as would have been the proper protocol. We were a shoe-string operation, hired a good pro-life attorney, but wisdom would have required an attorney with specific knowledge of this territory.]
What gives? How can one man block the wishes of so many voters? What realities are at play in our political system that allow the Attorney General to virtually ignore our probing Constitutional arguments in his published opinion and legal brief?
The question was multiple-choice: “In biological terms, when does an individual human life begin? There were four options: A) Conception; B) Viability; C0 Birth; and D) Write-In: Specify a Different Biological Term.
The question’s purpose was simple: to determine what consensus does or does not exist on this crucial question, in a legally non-binding manner of apprising our legislators. The 1973 U.S. Supreme Court Roe v. Wade decision, which legalized abortion, asserted that there was no consensus on this question [a “We don’t know” posture], and then tacitly dismissed the possible humanity of the unborn. But that decision explicitly left the door open for such a consensus to be proven in the future.
Roe v. Wade is the only example in American law I know of that was based on non-consensus, on an “I don’t know” posture. All other law is based upon agreement first on the facts of the case. If a trial cannot reach unanimous agreement, then the judge can give no decision. But Roe v. Wade asserted such a “hung jury,” then judged against the unborn. How astonishing!
Thus, our question sought to give the full range of possible positive answers on this issue — and nobody challenged this reality. And it was a clear example of democratically informed choice. If legalized abortion is logically arguable, why would such a democratically pro-choice and positive question be opposed?
But the Attorney General in his opinion and brief, and Planned Parenthood in their amicus curiae [supported politically by the Civil Liberties Union of Massachusetts (CLUM) and Boston chapter of the National Organization for Women (NOW)], argued that a negative option must be allowed. I believe that, in the knowledge that there is no evidence to dispute the biology of conception, they knew that abortion advocates could not unite on any positive biological term, and could only unite in negation.
Such an insincere agenda was evidenced on August 17, when an Assistant Attorney General called me, offering to negotiate a change in the question’s language. The Attorney General’s officer has acknowledged this phone call in writing. I was asked if we were willing to allow one or both of two other options; 1) “I don’t know,” and 2) “No, I do not want to instruct my legislator.” I answered, first, that I have no such authority to change the wishes of 26,000 voters, and second, if I did, I wouldn’t. An “I don’t know” posture is not only unprecedented and the opposite of democratic consensus, but it is also the very essence of the Roe v. Wade ruling we were seeking to redress.
In Shannon’s September 2 opinion, he said 1) it was not a valid public policy question; 2) it was not a proper form of instruction; and 3) multiple-choice is not permissible. If so, how does one explain the phone call from the Assistant Attorney General? Why would he suggest two other options if multiple-choice is invalid? And why would he include the word “instruct” in one of these options if our question was not a proper form of “instruction?” And why would he make any offer at all if it were truly not a question of public policy? And why would he ask us to consider making any changes at all, when the September 2 opinion said explicitly that no such changes can be made after the petitions have been signed?
Did Shannon, who was a member of Planned Parenthood’s board of directors until the time he assumed his present officer, act in “bad faith?” The evidence that he did is clear …I draw the following conclusion: abortion advocates steadfastly avoid public discussion of the issue, and here, they have opposed democratically informed choice.
John C. Rankin, Executive Director, New England Christian Action Council, 11 Pleasant Street, Gloucester, MA 01930 (508) 283-4575.