Have you heard of Kent Schaible?

Anyone who has conversed with me in detail knows how I feel about parents substituting prayer or homeopathy for actual medicine in treating their children. In early 2008, the case of Madeline Neumann received international attention and once again brought the case of faith-based treatments to the forefront of international scrutiny.

On January 24, 2009, at approximately 9:30pm EST, 2 year-old Kent Shaible passed away from complications due to bacterial pneumonia at his family home.1 His parents — Herbert and Catherine Schaible, 41 and 40, respectively — were over him praying for him to get better.

Kent would’ve been turning 4 years-old on July 17.2

Bacterial pneumonia is very treatable. A regimen of antibiotics along with plenty of rest and fluids is all it takes.3 Instead of being dead in two weeks from onset, Kent would’ve been a living and healthy, happy toddler.

There was very little on this case in the news — I never heard about it until recently and I tend to read the news every day. Most of the news of this case didn’t surface until the trial for the parents was set, which occurred in October 2009. I’ve yet to find a news story about this case from January 2009 or shortly thereafter. Much of the discussion of this case happened instead in the blogosphere and opinion pages. So unless you read various religion-based blogs, which I don’t, you probably haven’t heard of this case.

When Madeline Neumann died in March 23, 2008, the press was all over it. Like I said, it received international attention. And Madeline’s case overshadowed the case of 15-month old Ava Worthington (d. March 2, 2008), but even Ava’s case was in the news shortly after her death.

But I still cannot help but ask the question whether Ava’s case would’ve slipped quietly beneath the waves if Madeline’s case hadn’t brought the issue to the forefront?

One of the big issues is that, with these cases becoming more frequent, the parents have yet to receive any kind of worthy sentence. Madeline’s parents received ten years probation each and were ordered to serve 30-days in jail each year for the next six years.4

And one of the things that allows these parents to walk out of the courtroom with little more than a slap on the wrist is the fact that many States have laws exempting parents from responsibility when they substitute prayer over medical attention.

Now I am a libertarian, meaning that I will fully defend someone’s right to practice their religion. However as I’ve said previously, you do not have the right to compromise the health or life of your child by refusing to seek medical attention.

When will these parents learn that prayer alone will not do the job? After all, why should God do for you what you can already do for yourself?

  1. Dean, Mensah M. (2009, October 8). "Faith-healing parents charged in death of infant son". Philadelphia Daily News. []
  2. Search for Kent Schaible through the Social Security Death Index []
  3. WebMD.com. "Bacterial Pneumonia: Symptoms, Causes, Tests, and Treatment". []
  4. Riordan, Kathy. (2009, October 6). "Judge Shows Leniency to Parents in Wisconsin Prayer Death". Open Salon. []

"There should be a law"

"That should be illegal."

Typically when someone says something like this, it means one thing: they’ve heard or seen something which has no direct impact upon them, but because they don’t like it for some reason, they feel it should be outlawed.

Recently introduced in the Massachusetts legislature is a proposal that would make circumcising a male child a criminal offense punishable by fine or up to 14 years in jail. Could you imagine jailing a rabbi for doing something that is part of their religious tenets?

Now there is a growing movement against male circumcision, with many calling it unnecessary and even detrimental — though there’s nothing detrimental about the fact that circumcision reduces a male’s susceptibility to STDs (still a good idea to use condoms) along with reducing the chances of penile issues such as fungal and skin infections because of that foreskin.1

So what’s the point of the legislation, besides the obvious violation of the rights of Jews to practice their religious tenets? There isn’t one. There is no point to or any benefit derived from outlawing circumcision.

But a lack of point or benefit hasn’t stopped legislatures from pointlessly outlawing other things over the years. Arguably the most famous example is Prohibition. It started in 1920 as part of a growing movement to do away with alcoholic beverages in society, and was simply an implementation of one idea: some people get drunk, fewer still cause problems when drunk, so no one should be able to drink alcohol at all.

For thirteen years this experiment lasted in the United States, spawned after the ratification of Eighteenth Amendment. (Trivia question: Is the Eighteenth Amendment still a part of the Constitution? Answer later.)

So what was the result?

Increased crime and increased alcohol consumption because it was illegal. Plus enforcing prohibition drained government coffers because there was now no longer any tax revenue coming in from excise taxes on alcohol. On the plus side, it was great for the economy, especially the California grape market, and not to mention the underground black markets that were distributing bootleg booze.

Prohibition was finally brought to its end in 1933 following the ratification of the Twenty-first Amendment which, while repealing the Prohibition amendment, also gave Congress the unilateral authority to control the interstate sale and delivery of alcoholic beverages. Those laws are enforced by the Bureau of Alcohol, Tobacco, and Firearms and Explosives (ATF).

Prohibition taught the United States one lesson it has since forgotten: legislation will, nine times out of ten, not work. I posted this to my Facebook page earlier:

It doesn’t work for drugs, extramarital affairs (yes some States have laws making it a crime to cheat on your spouse), sex between unmarried yet consenting adults, even adults of the same sex, and even with the exchange of money involved (i.e. prostitution). It didn’t work for abortion, and it certainly didn’t work during prohibition.

Currently Nevada is the only State in the United States where prostitution is legal and regulated. Laws against prostitution are costly to enforce, and it leads to a lot of other problems. Currently there are candidates for governorships who are campaigning on the idea of legalizing prostitution along with marijuana.

Which brings me to the "war on drugs". I’ll just say this: it’s time to surrender. The laws aren’t working. They are also costly to enforce, they’ve led to a thriving black market for contraband substances, and have in the end led to more problems than they’ve solved.

If we want to get rid of drugs in our society, we need to better teach our children to stay away from them. Hey if I could learn to stay away from drugs, so can others.

Legislation is not the answer. As I said, it is not working for prostitution and drugs, it didn’t work for prohibition and abortion, and it won’t work for many of the other things for which someone has said "there should be a law".

It half surprised me when I learned that some states2 have laws on the books criminalizing adultery, though in the wake of the landmark case Lawrence et al. v. Texas, 539 US 558 (2003), these laws are not really enforceable any longer, as are laws criminalizing fornication3.

And then there are laws banning pornography and other "obscene" materials. Oh dear God. Oh wait, it’s typically in his name that stuff that is considered "obscene" should be banned. That’s why the novel Fanny Hill was "banned" in the United States until 1960 (it was originally published in 1749). To quote Larry Flynt, "If the human body is obscene, complain to the manufacturer".

If I, as an adult, wish to seek out "obscene" material, what place has the government to tell me that I cannot do that? The answer is simple: absolutely none.

And "blue laws", which are laws prohibiting certain acts on Sundays, have got to be some of the dumbest laws ever conceived, let alone enacted. If I want to work on a Sunday (which I have, many times over), that is between me and God, not between me and the government.

Laws that do nothing for society, and actually infringe on the rights of others, have no place being enacted. Repeal the laws that do not work, and stop passing stupid laws that will not work and will only create a tingling sensation between someone’s legs whenever they say "at least it’s illegal".

Give me a break.

* * * * *

Trivia: Is the Eighteenth Amendment still part of the Constitution of the United States? Yes.

The amendment process established under Article V of the Constitution does not call for the text of the Constitution to be modified directly. Instead all Amendments that are ratified are called "codicil", meaning they are merely attached to the Constitution but override some part therein.

The fact that the Twenty-First Amendment repeals the Eighteenth does not mean the Eighteenth Amendment is removed from the Constitution. It means only that the Twenty-First Amendment invalidates or nullifies it, but we still leave it in place. This is important in preserving the revision history of the Constitution through time.

In interpreting the Constitution, where an Amendment and the main body of the Constitution conflict, the Amendment controls. However where two Amendments conflict, the newer Amendment controls.

This is also quite different from the standard legislative process in which acts of Congress do call for direct modifications to the US code along with additions and removals (repeals).

  1. WebMD.com. "Sexual Health: Circumcision". []
  2. Code of Virginia § 18.2-365 []
  3. Code of Virginia § 18.2-344, Utah Code 76-7-104 []

Contract from America and conservatives

As of late, there has been a growing movement in the United States calling for a "Contract from America", a play on the 1994 Republican "Contract with America" in which the Republican party laid out several promises they would attempt to enact should they be elected. The contract lays out three specific promises, those of individual liberty, limited government, and economic freedom.

However in addition to these three promises, I’ve seen many conservatives calling for additional promises, two in particular being an end to abortion and an end to gay marriage. The reason these additional "promises" are sought is because many conservatives are looking at the tea party movement as a way to vault them back into power. But what they don’t realize is that these additional promises are contrary to the actual purpose of the tea party movement.

How so?

The idea of the tea party movement is to seize back power from the Federal government that they do not legitimately have. Basically what this means is that no government at the Federal, State, or local level has the authority to tell any person what they can or cannot, must or must not do.

Instead the government is established for the purpose of protecting the rights of the people, among other purposes. A criminal or civil law is considered legitimate when its purpose is to prevent one person from violating the rights of another.

For example the Constitution says, by way of the Fourteenth Amendment, that only the State has the authority to take a person’s life but only after proper due process has been taken:

…nor shall any State deprive any person of life, liberty, or property, without due process of law…1

Now the legitimacy of capital punishment has been debated for centuries, and I’m not going to go into it here, but I think we can all agree that one person taking the life of another is not a legitimate action as it violates the rights of the person whose life was taken.

The only time that the taking of a person’s life is considered legitimate is when it is to prevent that person from taking someone else’s life — i.e. lethal force is considered legitimate when your life or someone else’s life is in danger.

So let’s look at the issues of gay marriage and abortion and see whether they would live or fall under the idea that government is to protect rights.

Would allowing two homosexual men or women to marry violate the rights of any other person in the city or state where the marriage occurred? Absolutely not, and I challenge any person who feels differently to explain how their rights are violated or infringed by two gay men or gay women getting married, along with what rights are violated.

The legal prohibition, however, of two individuals of the same gender from entering into the civil union of marriage is an infringement upon the rights of the two individuals seeking to become married. As such, any law preventing two gay men or two gay women from becoming legally married is not a legitimate law, and any such constitutional ban, whether at the state or federal level, is not a legitimate passage of the constitution.

Now what of the issue with regard to abortion?

One thing upon which I believe everyone across the spectrum of abortion opinions can agree is this: with regard to the end of seeing abortions come to an end in the United States, legislation and government is not the means to accomplishing this end.

As Harry Browne (b. 1933, d. 2006) wrote in an article published in 1998:

To one side we say: we will not let the government impose its way upon you. To the other side we say: if you want to reduce abortions, there are much better ways than by depending on the government — because it will only disappoint you.2

Libertarian Murray Rothbard wrote in his book For a New Liberty that "no being has a right to live, unbidden, as a parasite within or upon some person’s body"3.

Really the libertarian approach to abortion is about being hands off. The group Pro-Choice Libertarians claims on their web site they are for people "who want to make sure the Libertarian Party stays defacto ‘pro-choice’ — or anti-prohibition — on the abortion issue." They clarify this position, "we do not want [the government] prohibiting (or mandating) abortion".

Other libertarians take decidedly "pro-choice" positions on the libertarian stance of ownership of one’s body and control over the decisions related to their body. Ayn Rand, author of the best-selling novel Atlas Shrugged, said

An embryo has no rights. Rights do not pertain to a potential, only to an actual being. A child cannot acquire any rights until it is born. The living take precedence over the not-yet-living (or the unborn).

Capitalism Magazine runs a web site called "Abortion is Pro-Life". In their Frequently Asked Questions page, they define abortion as

the termination of pregnancy by the induced removal of an embryo or fetus (that is incapable of survival outside the body of the woman) which results in the death of the embryo/fetus.

and further state that

A fetus does not have a right to be in the womb of any woman, but is there by her permission. This permission may be revoked by the woman at any time, because her womb is part of her body…

What applies to a fetus, also applies to a physically dependent adult. If an adult…must survive by being connected to someone else, they may only do so by the voluntary permission of the person they must be connected to. There is no such thing as the right to live by the efforts of someone else, i.e., there is no such thing as the right to enslave.

They further clarify the difference between children and the unborn by way of physiological dependency. A child is physiologically independent of the mother, and the child’s survival is dependent upon the same factors determining the mother’s survival. If the child’s mother were to not survive, the child may still have a chance at survival: the child’s life is not dependent in whole, only in part, upon the mother.

However, an unborn’s survival is dependent in whole upon the mother. As such, it does not have any physiological independence, and as such, the dependency necessary for the unborn’s survival exists only so long as the the mother allows it to exist. Any law forcing this dependency to continue against the mother’s will violates her rights.

Now of course I personally believe that as a matter of common sense a woman should not have "conception to birth" access to abortions.

And common sense is another matter that also needs to be reintroduced into society. For example, the Constitution says that a KKK member has the right to appear at a rally for the NAACP and protest in opposition. Common sense, however, says that it would not be a good idea.

And while it is legitimately a woman’s right, in line with what was discussed above, to at any point terminate the dependency the unborn places upon her, common sense calls for a a line to be drawn at some point based on the potential for the unborn to survive independently of the mother, and the laws of most states have already drawn this line for us.

  1. Amendment XIV, Constitution of the United States of America []
  2. Browne, Harry. (1998, December 21). "The Libertarian stand on abortion." []
  3. Rothbard, Murray. "Personal Liberty". For a New Liberty. pp. 107–108. []

Canceled debts and the IRS

Anyone who has racked up a lot of debt knows that if they go into default, they can be at the mercy, or lack thereof, of their creditors.

For example, as a tool to try to convince you to just give in and pay the debt, a creditor or credit collection agency can threaten a forgiveness of the debt. Now while you think this might be a good thing, it has two major impacts on your financial life of which you need to be aware.

First, forgiving a debt, especially a debt that is a coupe thousand dollars or more, will wreak havoc on your credit rating. To have a debt forgiven is worse than settling a debt. In a debt settlement, there is a partial forgiveness of the debt, as the creditor is agreeing to accept less than the debt’s actual amount and is writing off the rest.

But the darker side of this awaits you come tax season the following year.

If the forgiven debt is more than $600, or if the debt was settled for more than $600 less than what was owed, that amount is taxable as income. For many who settle their credit card debts, this will typically mean an extra couple hundred dollars added to their tax burden, resulting in a shrunken tax refund, or an increased amount owed. It will not have a significant impact on your taxes, and if you do end up owing as a result, the IRS will work with you to make arrangements to get everything paid if you cannot pay it at the time you file.

But let’s turn our attention to something a little more… significant.

Over the last couple years, to say there have been so many foreclosures on mortgages that a fleet of merchant tankers cannot contain all of them might seem accurate. To avoid foreclosure, many lenders are accepting an alternative: a short sale.

When a house is sold short, the bank agrees to take whatever can be gotten for the house and write off the rest. There are certainly some hurdles involved, and if you are looking into buying a home being sold short, speak with an attorney to find out what you’re in for.

When presented with a short sale, the lender will tend to go with it because it gets a potentially bad loan off their books. But the difference between the principal and the revenue from the sale is considered a canceled debt. This means this amount is also taxable. And given we’re talking about real estate, you can almost guarantee that there will be a taxable amount left over.

This amount will jump you a few tax brackets, and may erase your ability to take certain credits and claim certain deductions. You might even find yourself subject to the dreaded Alternative Minimum Tax.

Basically short sales mean both the lender and the borrower take a significant financial hit. I wonder if Congress and Obama are taking this into account.

This really makes me wonder how many families are finding themselves with “upgraded” incomes in the eyes of the IRS because of debt settlements or short sales.

Cancer vs. abortion

In a conversation regarding the press coverage of March for Life, my cousin’s husband, let’s call him Nathan, made a comparison with the Susan G. Komen Race for the Cure.

In the conversation, I alleged that the press coverage for March for Life was lackluster at best because it is “same thing, same day, different year”. Let me explain this.

March for Life is held on the same day each year: January 22, the same day that Roe v. Wade was decided in 1973. The same thing happens each year as well: a couple hundred thousand people (impressive unto itself) gather in Washington, DC, because they are pissed the Supreme Court isn’t listening to them and overturning Roe. The first March for Life was held January 22, 1974, and it has been held every year since.

To that regard, since Nathan works for a pro-life organization, I said that he could come up with a way to “spice up” March for Life to see if it could garner more press attention.

In response Nathan alleged that Race for the Cure is also “same thing, same day, different year”. As I pointed out to him, this is far from the case.

First, it is not “same day, different year” as each venue that holds a Race tends to hold it on different days each year. Now if he said it was the same day of the week each year, then that would be true, arguably not for all races, but that’s not what was said.

March for Life is also a politically-charged, peaceful rally. Race for the Cure is a politically neutral fundraising effort.

Nathan seems to believe that abortion is a more important issue than cancer research. He agrees that society as a whole appears to see cancer research as a greater issue than abortion, then followed up by saying this is “due to societal ignorance and bias”. He even had numbers to back that up. As I would discover after responding to him, he had the wrong numbers.

First, he mistakenly said that 1.2 million abortions were performed in 2009. That figure is actually from 2005.1 As of the time of this writing, numbers on abortion in the United States for 2006 haven’t been compiled, let alone for 2009. His focus was purely on death as well, not incidence, stating that according to the American Cancer Society, an estimated 562,340 individuals died as a result of cancer in 2009.2

Yes it is tragic when an infant’s life is taken before it even has a chance, assuming the infant even had a chance to begin with. But cancer still affects far more people than abortion.

According to the United States Centers for Disease Control and Prevention, there were 1,382,758 incidents of cancer in the United States in 2005.3 That is all cancers, among all age groups, with 934 cases of cancer in infants and 4,103 cases among all children through age 4. The American Cancer Society also estimates that there were approximately 1,479,350 new cases of cancer in 2009. 4

Further, the fact of a woman having an abortion is far easier to conceal from family and friends then the fact of a person having cancer. Statistically speaking, many of us know a woman, possibly even in your own family, who has had an abortion.

Certainly, the emotional scars of an abortion are very real. But unless the person who obtained the abortion tells you about the abortion, it is typically a secret that is easier to keep.

Cancer is quite different.

I’m sure those who have lost friends or family to cancer or have friends or family with cancer can agree that cancer’s impact extends well beyond the person with the cancer. I’m sure you can remember how you felt when you learned a friend, colleague, or loved one had cancer.

A former colleague of mine succumbed from a brain tumor at age 28, leaving behind a wife and a child, a newborn if I recall correctly.

It is a fallacy to compare abortion to cancer. But to suggest that abortion is more important than cancer research is just foolish.


  1. Guttmacher Institute. (July 2008). “Facts on Induced Abortion in the United States“. []
  2. American Cancer Society. “Estimated Cancer Deaths for Selected Cancer Sites by State, US, 2009“. []
  3. You can retrieve the numbers yourself from their WONDER system []
  4. American Cancer Society. “Estimated New Cancer Cases for Selected Cancer Sites by State, US, 2009“ []

Scott Phillip Roeder

On May 31, 2009, Scott Roeder walked into the Reformation Lutheran Church in Wichita, Kansas, waited for the right opportunity, and shot and killed George Tiller.

He has confessed to it numerous times, and today, he basically hung himself in Court.

During the trial, Roeder’s defense attorneys tried to present a defense that would hopefully result in a conviction on voluntary manslaughter. As such, to justify the lesser charge, Roeder verbally gave everything needed to secure a conviction of first-degree murder.

On the stand, Roeder revealed he had been trying to find the chance to kill Tiller since August 2008, over 9 months of trying. He even considered a sniper shot while Tiller was walking into his clinic, but he knew that Tiller drove an armored vehicle, wore body armor, and had a security detail.

Seeing the church as the opportunity to kill him, Roeder showed up, armed, at the church numerous times while. On May 31, Roeder finally got his opportunity, shooting Tiller in the church foyer.

But today, the judge in the case ruled against allowing the lesser charge of voluntary manslaughter. Roeder now faces conviction of first-degree murder, which carries a mandatory life sentence without the possibility of parole.

While I feel, that given the extreme pre-meditated nature of this crime, Roeder should have been subject to the death penalty, I am relieved he is not. The last thing we need to do is make Roeder another Paul Jennings Hill, or give the extremist or militant pro-life lobby another martyr.

Unless there is a dereliction of duty by the jury, Scott Phillip Roeder will be convicted of "murder one" for killing George Tiller. What started off as a controversial and rocky case will come to a sure and just end.

There will likely be appeals, and they will likely, and hopefully, fail.

The fact of the matter is that Scott Roeder killed a man in cold blood in the foyer of a church. This didn’t happen in Tiller’s clinic while he was preparing to perform an abortion. Roeder killed Tiller in a church, shooting Tiller in the head because Roeder knew that Tiller had the tendency to wear body armor.

At least Roeder likely will be sitting in jail for the rest of his life, unless, as I said, there is an extreme derelict of duty on the part of the jury.

Commentary on capital punishment

I am in favor of capital punishment. I will say that up front: I’m in favor of the death penalty. I’ve been in favor of it all my life; it’s not something that is going to change readily.

Now there are a lot of arguments and misconceptions against capital punishment. I’ve heard quite a few – in fact I’m quite well-read on the subject. The only part of capital punishment on which I choose to not be well read are the various tactics in which it is carried out. The method, to me, is independent of the concept.

I could write article after article, blog post after blog post about why various methods should not be employed, and many probably have. I’m not here to argue the method, though, only the concept of capital punishment. And there are a lot of arguments to choose from, such as this one:

"The Eighth Amendment’s protection against cruel and unusual punishment means that the death penalty is unconstitutional."

If you believe this, then you need to re-read the Fourteenth Amendment, more specifically the Due Process Clause:

[N]or shall any state deprive any person of life, liberty, or property, without due process of law

The Due Process Clause states simply that the government may not, without first going through the necessary legal processes, seize your property, incarcerate you or strip you of your rights ("deprive you of…liberty"), or put you to death ("deprive you of life").

The mention of life separate from liberty and property means that the Constitution is implicitly declaring the death penalty as constitutionally exempt from the Eighth Amendment. Where an Amendment and the body of the Constitution conflict, the Amendment controls, and where two Amendments conflict, the newer Amendment controls.

"So what about those who’ve been released from death row, having had their convictions thrown out on new evidence?"

Any person who uses that as an argument needs to rethink their logic. You might as well say that those who’ve been released from prison, as contrasted from death row, due to new evidence surfacing means that the entire penal system should be abolished.

The fact that the prisoner was on death row is irrelevant to the argument. They were incarcerated by the State following a conviction by a jury of their peers in a Court of law, meaning the jury weighed the evidence presented to them and returned a verdict of Guilty.

Evidence later surfacing that provides the reasonable doubt necessary for a conviction to be set aside isn’t a problem with capital punishment, but with the criminal investigation. The only thing that capital punishment brings to that party is an implied time limit. I say "implied time limit" because there is not any limit on when a person can have their conviction overturned or vacated to the best of my knowledge. The only difference is whether the person will be alive when that happens.

And that applies equally to individuals not sentenced to death, as the person incarcerated could die unexpectedly in jail, whether on death row or not, or might expire during a life sentence before new evidence surfaces that allows the conviction to be vacated.

And yes, there have been cases where a person’s conviction has been posthumously vacated where the person in question died in prison. In 2000 convictions for murder against four members of the Patriarca crime family were overturned. The conviction was secured in 1968, and by the time the conviction was overturned, two of the men had expired in prison.

Miscarriages of justice are unfortunate, but abolishing the death penalty will not eliminate them, and there is nothing to suggest that the occurrence will be reduced.

"But capital punishment has no deterrent effect."

I agree. But let me raise your claim with this argument: the entirety of the corrections and criminal justice system has no deterrent effect on murder either. So what’s the point in arguing that there’s no deterrent effect when the threat of just going to prison for the rest of your life doesn’t deter either?

And I would not consider it unreasonable to expand the argument to say that the criminal justice system doesn’t deter any crime.

"If that’s the case, then why do so many try to cover up the murders they’ve committed?"

That is a psychological question that I don’t have the answer to, and I’m not going to speculate. But I’m sure if you read around there’ve been articles and books published on it.

But with regard to the murder itself, once someone forms the intent to kill a person, there is likely nothing to deter the person from actually going forward with the crime, other than a kink in their plan, assuming there is a plan. And the same could apply to virtually any other crime.

I mean think about it, is a person who has already decided they will kill someone suddenly going to back down upon realizing that they will go to jail? I highly doubt it.

"It costs more to keep a person on death row than it does to incarcerate them for life."

It also costs more to incarcerate a person for life than it does to parole them after 20 years, depending on the prisoner. Should we abolish mandatory life sentences without the possibility of parole?

If we start successfully arguing that certain punishments should not be allowed because of cost, eventually it’ll become that no punishment should be allowed because of cost. Instead of incarceration, perhaps just fine people for their crimes since that actually provides a positive revenue stream to jurisdictions instead of paying out to support prisoners while they are in jail.

If you find that statement irrational, then it is equally irrational to argue about the cost of keeping a person on death row.

* * *

Thank you to Glenn Beck and his book Arguing with Idiots: How to Stop Small Minds and Big Government for the inspiration for this format. If you haven’t read this book, I highly recommend it. Now before you think I’m a Kool-Aid drinking conservative nut who will readily say "Yes, Glenn, I believe you" to anything he says, not the case. There are actually points of view on which I disagree with him, believe it or not.

A forgotten case on abortion

Typically when discussing abortion, many in both the "pro-life" and "pro-choice" camps tend to focus on the infamous Roe v. Wade, 410 US 113 (1973). But Roe was not the first case to address abortion, and it certainly was not the last.

Like many other decisions, the Supreme Court built the jurisprudence of Roe upon the decisions of prior cases. One notable case is Griswold v. Connecticut, 381 US 479 (1963), in which it was decided that the State may not outlaw birth control, but it applied only to married individuals. Building immediately upon that decision is Eisenstadt v. Baird, 405 US 438 (1972), in which the Supreme Court expanded Griswold’s protections to unmarried individuals.

Between these two cases would come another, dealing almost directly with the criminal proscription of abortion.

Dr. Milan Vuitch was arrested in the District of Columbia in 1968 for illegally performing abortions. Judge Gerhard Gesell, however, would set aside the indictment and rule that the statute under which Vuitch had been arrested was "unconstitutionally vague". That decision would be appealed to the United States Supreme Court.

Oral arguments in the case would be held on January 12, 1971, and the case would be decided April 21, 1971. In United States v. Vuitch, 402 US 62, the Court would reinstate the indictment against Vuitch, stating that the law in question was not unconstitutionally vague, but the ruling doesn’t stop there.

Because Vuitch was arrested and indicted under a criminal statute, the Supreme Court ruled that ultimately "the burden is on the prosecution to plead and prove that an abortion was not ‘necessary for the preservation of the mother’s life or health.’" [406 US at 71]

If this burden is not met beyond reasonable doubt, as determined by the fact-finder during the trial, a "not guilty" verdict is compelled. This particular provision is in line with virtually every other criminal statute on the books: the prosecution has the burden of proving beyond reasonable doubt the existence of all facts and elements pertinent to supporting the charges alleged.

Let me repeat that because it is quite important for everyone to remember:

In any criminal trial, it is the burden of the prosecution to prove beyond reasonable doubt all facts and elements necessary to support the charges alleged. In no criminal trial will you find it the burden of the defense to prove the absence of a particular fact or element to secure a "not guilty" verdict.

An element of a crime is presumed absent unless otherwise proven to exist beyond reasonable doubt by the prosecution with cross-examination by the defense.

The central tenant behind the reason the law was originally declared unconstitutionally vague rested on the supposed vagueness of the world "health" with regard to whether an abortion was performed pertinent to the mother’s health. Does that mean physical health only, or does it also include mental health?

Applying Doe v. General Hospital of the District of Columbia, 313 F. Supp. 1170 (DC 1970), the Supreme Court ruled, inline with this decision, that abortions may be performed to resolve or avoid compromising the mental health of the mother, even if she had no prior history of mental health defects. This is the standard that allowed George Tiller to perform seemingly needless late-term abortions.

With the law upheld and the indictment reinstated, Vuitch would face trial on charges of illegally performing abortions. However with the burden now firmly on the shoulders of the prosecution to prove, beyond a reasonable doubt, that the abortion was performed in violation of the statute, prosecutions of allegedly illegal abortions would become difficult.

Vuitch perfectly outlined the difficulty of prosecution with regard to abortions:

Now the government lawyer will be in the position of challenging my medical decision. What are the jury members going to decide when a lawyer tries to tell them that the doctor is wrong about a medical matter? [1]

Even if abortion were again criminalized today, with the Vuitch standard in place (I don’t yet know of a case where it was vacated), prosecution would still be very difficult.

Other questions, however, were still yet to be answered at the time the Vuitch decision was rendered.


[1] "Ambivalence on Abortion". Time. May 3, 1971.

United States Supreme Court cases: