Should Roe v. Wade Be Overturned?
Background to the Bilbao v. Goodwin Connecticut State Supreme Court Case
John C. Rankin
[click here for the TEI Pro-Life Coalition and its Strategy]
April 16, 2018:
Below is a simple legal brief I have prepared in concert with the defendant, Timothy Goodwin. Tim and his ex-wife, Jessica Bilbao, have a cryogenically frozen human embryo they had intended to implant, and they already have a daughter born the same way. But then Bilbao wanted a divorce, Goodwin settled equitably, but he also wants his embryonic child’s life to be preserved and made available for adoption. Bilboa says no, she does not want her child raised by someone else (“a stranger”), thus wants their human embryo destroyed, and the divorce court ruled in her favor. Goodwin has appealed to the Superior Court, which has forwarded his case to the Connecticut Supreme Court, and his brief has arrived there on April 16. Bilbao has 30 days to respond with her own brief, Goodwin then has 20 days for his response, and the case will be heard in the autumn.
Goodwin had been unable to secure satisfactory legal counsel, is appealing pro se, and has asked me for advice. In terms of bona fides as a non-attorney, I headed up the New England Christian Action Council, an evangelical pro-life ministry from 1983-1991, in the Boston area. Across the years, I have addressed this debate in depth and with regional and national leaders in the abortion lobby, and/or/otherwise with usually very skeptical audiences. Some venues include: Gordon College, Harvard Law School, Brown University, the University of Massachusetts (Amherst), the University of New Hampshire, the University of Rhode Island, Harvard Medical School, Dartmouth College, Wellesley College, Taylor University, Cornell University, Ithaca College, New York University, the College of William & Mary, Yale Law School, the University at Buffalo, Smith College, Georgetown University, Trinity College, Boston College, Chautauqua Institution, the University of Connecticut Medical School, the University of Richmond. My training is in history (B.A., Denison University), theology (M.Div., Gordon-Conwell Theological Seminary), ethics and public policy (Th.M., Harvard Divinity School) and political theology (in my present pursuit of an M.Phil. and PhD at the Oxford Centre for Mission Studies). In my book, Changing the Language of the Abortion Debate (see johnrankinbooks.com), the issue is comprehensively covered, including a chapter on a “Biblical Critique of Roe v. Wade,” which probes into and far deeper than the historical and legal case made in Roe. I also led the largest public policy petition drive in Massachusetts history, in 1988, on the question of the definition of biologically discrete human life, but it was muscled off the ballot by the Attorney General (http://www.teii.org/women-their-unborn/1988-massachusetts-ballot-question-legal-brief-and-strategy/).
Since the Roe decision on January 22, 1973, along with the companion Doe v. Bolton decision – making human abortion legal for the whole nation – there has been no legal case giving direct challenge that has arrived at the U.S. Supreme Court. Much of the pro-life movement has sought to address it more indirectly, to chip away at it. Here, there is an opportunity, in defense of Goodwin’s unborn child, to think outside the box in terms of prior legal arguments. I argue that by addressing four unresolved questions in Roe, all of which are found in Bilbao – three explicitly, one implicitly – it is necessary for the Connecticut Supreme Court to send it along to the U.S. Supreme Court for review. If they do not, and rule in favor of Bilbao, Goodwin will appeal to the U.S. Supreme Court himself. Not being an attorney, and thus unable to represent Goodwin in court, I have provided this legal brief for Goodwin to use pro se at the Connecticut Supreme Court. He has researched the whole question himself, agrees with and owns the deeper legal arguments I have provided, and has helped shape and prioritize some of the material.
- And there are very many insider variables within the judicial system that can quash this process at almost any stage. Roe v. Wade is a pagan icon for political idolaters, fiercely guarded for decades by any means possible. There is no interest in a genuinely constitutional argument and process. So it will be only God’s grace that will speed this case along. Regardless, the argument needs to be made, and at teiprolife.org the larger strategy is in place.
If it does reach the U.S. Supreme Court, the Court would have to answer the question of the biological humanity of the unborn; why they refused to address it to begin with; redress an insufficient review of the question of legal personhood; and another, not even contemplated question, namely, the husband and/or father’s role, rights and responsibilities toward the woman and their unborn child. If the Court were to overturn Roe by remanding these questions back to the States, or even only to Connecticut, an honest debate could finally happen.
Since the Bilbao case does not address human abortion per se, this brief is not in position to ask the U.S. Supreme Court for human abortion to be made illegal. But it is in position to ask for these questions to be reviewed, and if they are done so honestly, the legal structure for human abortion thus collapses. The Court would, if they accept such a case, at best, and given Chief Justice John Roberts and his penchant for narrow rulings, remand it back to the States, and not proactively rule that the unborn are legal persons at fertilization on forward. If human abortion were made illegal as a matter of federal law, we would see social riots on an unprecedented level, and this the Court does not want.
No law can last apart from the active consent of the governed, and regardless of any possible outcome of this case, we must persuade the nation. In Changing the Language of the Abortion Debate, I set the table for, and identify a strategy, that can win the hearts and minds of the majority of the American people, to give equal legal protection to women and their unborn, and to simultaneously hold men accountable to being real men.
Now, if the merit of this brief poses concern for pro-abortion advocates such as Planned Parenthood, the National Organization for Women (NOW), the National Abortion Rights Action League (NARAL/Pro-Choice America), the Connecticut Civil Liberties Union (CCLU), or Connecticut’s U.S. Senator Richard Blumenthal, it will be interesting to see if money appears to pay Bilboa to settle out of court, that is, to quit her claim in favor of a pro-life settlement for Goodwin. This oxymoronic move would be done to prevent a U.S. Supreme Court review of the legal status of unborn human life, that which is a deeply fearful prospect for the pro-abortion lobby.
Thus, a proactive ethic is needed, where immediate publicity is made, and if the case does head to the U.S. Supreme Court, monies need to be raised for the best attorney possible. Even if the pro-abortion lobby does somehow pay Bilbao to quit her claim, they would demonstrate a fear of the argument in this brief, and its argument thus gains stature for use when the right scenario presents itself. And, if such a buyout were to occur, Goodwin’s unborn child secures the de facto constitutional right to life prior to legal argument. If not, the case proceeds on its merits, which I believe are unique in two specific points among the four, legally sound, and all in service to Goodwin’s unborn child and millions of others. Regardless of the scenario, the profile of the real debate over Roe comes to the surface with greater clarity than heretofore.
Update June 8:
The legal firm representing Bilboa has filed for two extensions to provide its legal brief, and its full brief is now due on July 16. In its “preliminary statements of issues,” it makes four statements. The last three focus on a procedural issue already settled in court in favor of Goodwin. The first one says: “Should the judgment be affirmed on the alternative ground that the embryos were ordinary marital property and the trial court did not abuse its discretion in awarding them to the Plaintiff” [Bilboa]? 1) This is an attempt to make the issue one of procedure at the state court level; and 2) it ignores the questions Goodwin raises about the definition of human life that only the U.S. Supreme Court can address.
SUPREME COURT OF THE STATE OF CONNECTICUT
Re: A.C. 41001 Jessica Bilbao v. Timothy Goodwin
BRIEF OF PETITIONER (DEFENDANT)-APPELLEE WITH ATTACHED APPENDIX
Table of Contents
Statement of the Issues – 2
Table of Authorities – 3
Nature of the Proceedings – 4
Counter Statement of the Facts – 5
Legal Argument – 6
- Definition of Discrete Biological Human Life in Need of Review
- Question of [Refusal to Define Factual Basis] Has Yet to Be Addressed
- Definition of Legal Personhood in Need of Resolution
- Question of Male Role, Rights and
Responsibilities is a Glaring Lacuna
Conclusion – 14
Appendices – 15
Statement of the Issues
In divorce proceedings, the plaintiff, Jessica Bilbao, has been awarded the right to destroy the cryogenically preserved human embryo, conceived through in vitro fertilization, with her then husband, Timothy Goodwin. [The embryo] is ruled as her property. The defendant appeals this ruling.
Table of Authorities
Bilbao v. Goodwin, Docket NO. HHD FA-16-6071615-S
Davis v. Davis, 842 S.W.2d 588 (Tenn. 2992), cert. denied, 507 U.S. 911, 113 S. Ct. 1259, 122 L. Ed. 2d 657 (1993)
Doe v. Bolton (410 U.S. 179)
Roe v. Wade (410 U.S. 113)
Scott v. Sanford (60 U.S. 393)
Szafranski v. Dunston, 993 N.E.2d 502, 506, 373 Ill. Dec. 96, cert denied, 996 N.E.2d 24, 374 Ill. Dec. 577 (2013)
Nature of the Proceedings
On October 4, 2016, Jessica Bilbao filed for dissolution of her marriage with Timothy Goodwin, and on October 24, 2017, in Bilbao v. Goodwin, the Honorable Judge Robert Nastri, Jr. granted it.
Goodwin settled equitably, but with one outstanding issue. Bilbao and Goodwin still have a cryogenically frozen human embryo they had intended to implant, and already have a daughter born the same way.
Bilbao wants the human embryo destroyed, not wanting their child to be raised by someone else (“a stranger”). Goodwin wants their embryonic child’s life to be preserved and made available for adoption by a third party. Judge Nastri ruled in Bilbao’s favor, and Goodwin filed an appeal on October 30, 2017.
Then, on March 8, 2018, Timothy Goodwin was notified that the appeal was transferred to the Connecticut Supreme Court.
Counter Statement of the Facts
Bilbao, in basing itself on the “balancing approach” as defined in Szafranski and Davis, is deficient in four assumptions.
First, it assumes that biologically discrete human life can be reified. Second, it assumes a central fact that cannot be assumed. Third, it also assumes that the human embryo is neither fully property nor a person, and this is partly at odds with the first assumption. And fourth, it assumes that the father is not an equal in this matter.
The reason for these four deficiencies is rooted in prior deficiencies found in Roe. First, it does not define biologically discrete human life. Second, it does so by deliberately failing to address this question as the central fact of the case. Third, the majority opinion leaves a large lacuna on the historical question and definition of legal personhood. And fourth, the role of the father is not even considered.
Roe is landmark and definitive in establishing federal law relative to the definition of unborn human life, and a woman’s structured freedoms to terminate a pregnancy. Thus, since Roe leaves unresolved these four questions, the Supreme Court of the State of Connecticut is not in position to decide Bilbao.
Accordingly, the Supreme Court of the State of Connecticut must refer Bilbao to the United States Supreme Court, asking for a review of Roe, and thus, proper definitions.
There are four matters needing address: 1) the definition of biologically discrete human life, 2) the question of factual assumption; 3) the definition of legal personhood, and 4) question of the role, rights and responsibilities of the father. But the Supreme Court of the State Connecticut is not in position to render a decision in these matters. Bilbao notes that there are “no Connecticut appellate cases addressing ownership of cryopreserved embryos in a divorce action” (p. 6). Thus, it moves on to other state court decisions for reference.
- Question of Discrete Biological Human Life in Need of Review
In Bilbao, the divorce court ruling is based on the “[balancing] approach” (p. 7) as found in Szafranski v. Dunston (exact citation lacking in Bilbao). On this basis, it decides that Jessica Bilbao has the greater interest over the cryogenically frozen human embryo, than does her then husband, Timothy Goodwin, though conceived by both. She is thus free to destroy the human embryo which is ruled “to be the property of the plaintiff” (p. 9).
Bilbao also grounds its opinion in citing Tennessee as one jurisdiction that adopts the “balancing approach” (Davis v. Davis, 604). This means the interests of both father and mother need to be balanced, when they part ways, concerning the future of their human embryo. Tennessee’s language of “the preembryos,” an imprecise term, is also used here (Id.). Its use however, as Bilbao interprets Davis, does push back closer to the specific time of fertilization, yet only to what it pre-regards as a reified human life.
Tennessee is the first state court ruling on this matter, and in eight of eleven subsequent such cases, the courts have ruled in favor of the one who wanted to destroy the human embryo(s). And in three cases, women gained the right to implant the human embryos. In two states, the man has no statutory ability to affect his cryogenically frozen offspring. There is no federal law in this matter, so any argument from other state law is bound to be conflicted. And especially now, as the Arizona governor has signed into law Senate Bill 1393 (April 11, 2018), giving precedence to the party who wants to preserve the life of the human embryo.
So, whether nascent human life as property is an assumption, as has been the dominant opinion, or whether the assumption that the human embryo is a person, as indicated by some movement in this direction, state law remains a muddle, offering no clear guidance. And what are the facts presented that can justify either assumption?
At the federal level, the question of biological humanity of the unborn is legally unresolved. And the source for this irresolution is located in one, not in disparate places, namely, the landmark Roe decision. It addresses all pre-birth human life, and gives a clause to anticipate the cryogenically frozen, even if not specifically envisioning it.
“Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve this difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer” (at 159).
Curiously, the Court earlier, in a passing clause, speaks of “the well-known facts of fetal development” (at 157). But here (at 159) it professes the beginning of such development to be unknown, perhaps unknowable. Too, its language is syntactically fungible, speaking first in biological context (the language of “conception” [a technically imprecise reference to the more precise term “fertilization”]), then it segues into philosophical speculation, and later chides Texas for “adopting one theory of life” (at 162).
In other words, in not resolving “this difficult question of when life begins,” Roe ends up making an unwarranted assumption that, de facto, denies it to the newly conceived human embryo. This assumption, sans any inquiry into biological fact, makes this denial complete, from “conception” to “preembryo” and embryo to viability (ca. 24-26 weeks in utero), and only conditional (even subjectively) thereafter. Is straightforward biology a matter of science or one of philosophical theory?
Here the segue from Roe to Bilbao is clear. Namely, in 1973, the living embryo is found only inside the woman’s body, whereas now, and specifically here, such life can be found outside (cryogenically frozen). Roe uses the language here, vis-à-vis the above referenced “clause,” concerning “this point in the development of man’s knowledge.” Such an original irresolution in defining human life, and with appeal to future consideration, it tangibly invites Roe’s redress so that Bilbao can be decided.
Cryogenics is part of such development of human knowledge since Roe. And too, its language to “terminate a pregnancy” in utero, or to terminate a cryogenically frozen human embryo ex utero – what is the functional difference? It is only a question of place, where both only have the future of continued and maturing human life sans a chosen destructive interference.
This clause is also the justified basis for the April 23-24, 1981 U.S. Senate Judiciary Subcommittee hearings on “When does human life begin?” But political irresolution only followed the legal irresolution. This justified basis for review, as stated in Roe, is equally applicable to Bilbao, but Bilbao first needs the benefit of a review of Roe.
- Question of [Refusal to Define Factual Basis] Has Yet to Be Addressed
Also, and critically, apart from the question of biological humanity, yet with direct impact on the same, a prior and necessary concern is posed: In American jurisprudence, no legal decision can be made apart from an agreement as to the salient fact(s) of the case. Roe does not provide an agreement as to the central dispositive question of fact: When does biologically discrete human life begin? Indeed, it deliberately chooses not to decide the central fact question – a fatal deficiency for any judicial ruling, regardless of the subject.
If Roe believed there were no consensus, it should have at least remanded the case back to Texas. But it did not, effectively deciding – by not deciding – a non-delineation for determining the discrete biological origin of a given human life. Without this factual question investigated and decided, how can Roe or Bilbao even address subsequent issues? An agreement on humanity at fertilization modifies all that follows. An agreement on a later time for when biologically individual human life begins, would likewise modify all that follows.
This brief holds no purpose to address this question apart from threshold purpose, so that this, the central fact of Roe, which is not debated in Roe, must be redressed so that the debate occurs where it should have, where it should still. Thus, the “[balancing] approach” of Szafranski and Davis is made moot as a legal doctrine, since, as Roe does not address the biological definition of unborn human life, it cannot rationally define nascent human life as property. Thus, the Supreme Court of the State of Connecticut cannot decide on this matter until first the United States Supreme Court definitively addresses the question.
- Definition of Legal Personhood in Need of Resolution
Third is the matter of legal personhood. Bilbao sates: “The embryos are neither purely property, nor are they persons, but they are deserving of respect” (p. 5). And whereas this unresolved question twists between opposites, how can an embryo be “respected” if liable to destruction? Indeed, his or her biological cells are able (in utero) and still programmed (ex utero) to divide and multiply, the very definition of biological life (otherwise, why cryogenics to begin with?). As well, on the subsequent page (6), as already cited, Bilbao frames the question in terms of “ownership” of the embryo, that is, being property, belying prejudice already in place. Thus, later, and as already noted in Bilbao, the human embryo is ruled “to be the property of the plaintiff” (p. 9). Bilbao assumes what it does, even if in tortured sequence, only in the vacuum of Roe’s refusal to decide. And it can also be noted that the question of property surfaces both in the question of biological humanity and legal personhood.
The majority opinion in Roe declares that the unborn human does not possess legal “personhood” according to the argument of Texas with respect to the Fourteenth Amendment (at 159). Yet, in its treatment of the issue, one large lacuna remains, as Justice William Rehnquist identifies in his dissent:
“To reach its result the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat. Tit. 20, §§ 14, 16 (1821). By the time of the Fourteenth [410 U.S. 175] Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated [410 U.S. 176] their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 [410 U.S.177] and “has remained substantially unchanged to the present time.” Ante at 119, 35 L. Ed.2d at 158.
“There apparently was no question concerning the validity of this provision or of any other statutes when the Fourteenth Amendment was adopted. The only conclusion is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter” [410 U.S. at 174-177].
Rehnquist is pointing out that the Roe majority is acting contrary to the Fourteenth Amendment, making it apply in 1973 to something to which it never applied in 1868.
Too, in the 1857 United States Supreme Court decision, Scott v. Sanford (60 U.S. 393), Dred Scott, being of legally defined African descent, is thus denied his legal personhood. Yet, in the Thirteenth, Fourteenth and Fifteenth Amendments (1865, 1868 and 1870), the stare decisis, as it were, of Scott, is overturned.
Which is to say: Roe denies legal personhood to a class of people, the unborn, who are not addressed in the Fourteenth Amendment’s use of “all persons born or naturalized,” since they are not the subject of the ruling. In other words, Roe is making an argument from silence, in a context inapposite, which is the opposite of the historically contemporaneous construction of state abortion laws, and the opposite of the purpose of the Thirteenth, Fourteenth and Fifteenth Amendments. These Amendments honor the legal personhood of a class of people, those of African descent, theretofore denied; but Roe reverses this is denying legal personhood of a class of people, the unborn, theretofore enfranchised. Roe thus vitiates the very Fourteenth Amendment it cites.
Bilbao, as reviewed by the Supreme Court of the State of Connecticut, cannot resolve the twisting tangle between the definitions of property and legal personhood. It needs guidance from the United States Supreme Court, which therefore, must itself resolve the same question in Roe.
- Question of Male Role, Rights and Responsibilities is a Glaring Lacuna
“And fourth, Roe limits the future of the unborn embryo/fetus/child to the woman. This right to privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (ibid. at 153).
In Roe, the plaintiff is a single woman, (liable for suffering “the stigma of unwed motherhood” [at 153]), thus evidencing the absence, and/or the irresponsibility of the man toward both the woman and their child. Roe never speaks of the relationship between the woman and the man or husband, the father of the unborn child. It only speaks to the relationships between the woman and the state (at 153-54), and to her “consultation” with the “responsible physician” who may perform the abortion (at 153). In Doe, the companion decision to Roe, the woman is married, places one child of many up for adoption because “her husband had recently abandoned her,” even as they later reconcile (at 185). The question and definitions of the role and responsibilities of the husband and/or father, to both the woman and their child, is not addressed in Roe and Doe.
Which is to say, in Roe and Doe, the woman is given sole discretion whether to abort, absolving the man of all responsibility, and in no consideration of the later enunciated “balancing approach” in Szafranski and Davis.
This matter, and all its admixtures, also affects Bilbao, for Goodwin wants to assume responsibility toward the life and well-being of his unborn human embryo, opposite the very realities that helped cause Roe and, at least partly, Doe, to come to pass. But it is not an issue addressed in Roe. Thus, the question of the role, rights and responsibilities of the father is a glaring lacuna which the United States Supreme Court must review.
Bilbao has four deficiencies which cannot be resolved in the context of state laws and their confusion. First, the question of discrete biological humanity; second, the [non-address of the factual basis]; third, the question of legal personhood; fourth, the question of the male role, rights and responsibilities.
Federally, Roe and Doe have the same deficiencies at a prior and more comprehensive level. As with the various state laws, they provide no pedagogic value to serve the State of Connecticut Supreme Court in this matter.
Thus, unless there is a legally agreed definition for 1) biologically discrete human life, 2) the need for factual agreement on the same, 3) legal personhood, and 4) the role and responsibility of the father in the care for his unborn offspring, Bilbao v. Goodwin cannot be decided.
Bilbao and both Roe and Doe are birds of a feather in their deficiencies. And due to the federally interpretive power of Roe and Doe, Connecticut’s only option is to refer Bilbao to the United States Supreme Court for redress – specifically to review its own Roe and Doe decisions where these deficiencies find original residence.