Amicus Curiae Brief — Casey v. Planned Parenthood of Southeastern Pennsylvania (Nos. 91-902, 91-744)

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© IN THE

OCTOBER TERM, 1991

PLANNED PARENTHOOD OF SOUTHEASTERN

PENNSYLVANIA,

Petitioner,

Vv.

ROBERT P. CASEY, Et Al,

Respondents.

On Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF OF

JAMES J. CROOK AS AMICUS CURIAE SUPPORTING

RESPONDENTS

JAMES J. CROOK

Attorney at Law

Suite 602

109 N. Oregon Street

One Texas Tower

El Paso, Texas 79901

(915) 544-4529

Fax: (915) 544-4563

Texas Bar No. 05111000

* Counsel of Record

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

NOS. 91-744 and 91-902

PLANNED PARENTHOOD OF SOUTHEASTERN

PENNSYLVANIA,

Petitioner,

Vv.

ROBERT P. CASEY, Et Al,

Respondents.

On Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF OF JAMES J.

CROOK AS AMICUS CURIAE SUPPORTING

RESPONDENTS AND REQUEST FOR ORAL ARGUMENT

Pursuant to Rule 37.2 of the Rules of this

Court, Amicus James J. Crook respectfully moves

the Court for leave to file the attached brief

amicus curiae in support of Respondents.

Counsel for Respondents, through his agent, Ms.

Kate Mershimer, has replied to Movant’s letter

requesting consent to file his brief amicus

curiae stating that, if given, consent would not

be forthcoming until early March of 1992 in

order for Counsel to first review other such

amicus briefs. Ms. Andrea Miller, agent for Ms.

Kathryn Kolbert, Counsel for Petitioner, had

given verbal consent to the filing of this brief

Crook, however,

amicus curiae of James J.

suggested consent first be put in writing. This

request was put in writing. Subsequently,

Counsel for Petitioner, in a February 3, 1992

conversation with James J. Crook, clarified that

verbal consent had not been given by her office

and further stated that consent, if given, would

not be forthcoming until March or April of 1992.

No consent from Counsels for Petitioner and for

Respondents has been received by Movant at this

time. Movant admits to an early filing of this

motion. In the event consent is subsequently

received from cCounsels for Petitioner and

Respondents, a motion to disregard the Motion of

James J. Crook For Leave to File Brief Amicus

Curiae will be filed with dispatch.

INTEREST OF JAMES J. CROOK

James J. Crook is a citizen of the United

States with acute ethical, philosophical,

theological and humanitarian interests and

ordinary compassion in the outcome of the

Instant Case before this Honorable Court as the

outcome may literally preserve or destroy the

present and future lives and birthrights of

millions of innocent, unborn American citizens

and members of the human race. This prospective

amicus curiae has previously sent an essay to

each Justice of the United States Supreme Court

on the abortion issue and is now proceeding with

these previous perceptions plus additional

insights in the form of a proposed amicus curiae

brief so that the perceptions herein may

possibly be considered as a helpful addition to

the briefs filed and/or to be filed by the

Respondents before this Honorable United States

Supreme Court.

THE QUESTION PRESENTED IN THE INSTANT CASE

The question presented in the Instant Case

is a matter of continuing importance to James J.

Crook. Briefly stated, the question is whether

the notion of the sacredness of human existence,

at all stages, should be entrenched philo-

sophically in our Society and established as a

legal doctrine with reference to the fetal

rights of the innocent, unborn, living person as

an extension of and an addition to the presently

evolving Civil Rights Movement in this Nation,

thereby entitling this class of people to the

full and equal protection of the law.

The interest of James J. Crook is thus

predicated on the substantial and far-reaching

consequences that any decision in the Instant

Case may have regarding any limitation, placed

by legal precedent or fiction, on the dimension

of innocent human existence. As a side edi-

torial, the long lists of childless parents

desperately seeking to adopt unwanted children

has always been an available option for the

pregnant, pro-choice female preferring not to

keep the unborn child, without, in our society,

having to legally and corporally destroy, by

abortion, the notions and birthright of a

person’s right of existence. For these reasons,

James J. Crook requests an opportunity to

present his views on the Instant Case before

this Court by Brief Amicus Curiae and oral

argument.

For the above stated reasons, James J.

Crook respectfully urges the Court to grant this

motion for leave to file the accompanying amicus

curiae brief in the Instant Case in support of

the position of the Respondents.

Respectfully itted,

OWNS — Crook

S J. CROOK” ;

-orney at Law

Suite 602

109 N. Oregon Street

One Texas Tower

El Paso, Texas 79901

(915) 544-4529

Fax: (915) 544-4563

Texas Bar No. 05111000

Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..........cccccccccceee ii

INTEREST OF AMICUS CURIAE ................4. 1

THE QUESTION PRESENTED ..............eeeeeee 2

ee ieee encceccenceésecesie 8

B. ANALYSIS OF THE 1973

ROE v. WADE DECISION ................... 4

C. BIGHT TO PRIVACY AS IRRELEVANT

. TQ NOTIONS OF THE BEGINNING OF

HUMAN LIFE ENTITLED TO FULL AND

EQUAL PROTECTION OF THE LAWS ........... 5

RIGHT TO EXISTENCE OF THE

LIVING, UNBORN HUMAN BEING ............. 16

E. ROE v. WADE AS INTRODUCTION

OF ARBITRARINESS INTO THE LAW .......... 21

F. AN _ENDANGERMENT OF SOCIETY AND

CIVILIZATION RESULTED FROM THE

ROE Vv. WADE DECISION ..............+005. 26

CUP 96680066 0055668 S60 0c cdscccccececee 31

TABLE OF AUTHORITIES

CASES: Page

’

410 U.S. 113, 35 L.Ed.2d 147;

93 S.Ct. 705, reh. den.,

410 U.S. 959, 35 L.Ed.2d

694, G3 Ss. a 1409 e*eeeeeeeeeeeeee ee ep ee#eee#ee#ee#*ee. . 3

CONSTITUTIONAL PROVISIONS:

Constitutional Law,

Ee weyyvTTTTTTre 4

STATUTES:

Texas R. Civil Statutes,

Article 1196 eeeeeeeeeeeeeeeeeee seeecseecooeecee

> 44 «

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

Nos. 91-744 and 91-902

PLANNED PARENTHOOD OF SOUTHEASTERN

PENNSYLVANIA,

Petitioner,

Vv.

ROBERT P. CASEY, Et Al,

Respondents.

On Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

BRIEF OF AMICUS CURIAE JAMES J. CROOK

IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICUS CURIAE

Axiom: “Either innocent human existence is

sacred or it is not.*

The interest of amicus curiae James J.

Crook, as set out in the motion accompanying

this brief, is an ethical, philosophical and

theological concern with reference to the legal

right to human existence, especially of the

innocent, living, nonviable, unborn person. The

amicus curiae brief is intended, in a helpful

sense, to present a clear direction and simple

overview of the basic social issues inherent in

the Instant Case without an in-depth involvement

in the apparent quagmire of legalities which has

presently brought this case before the United

States Supreme Court.

Whether the laws of the Federal Government,

the States, counties and municipalities of the

United States of America can Constitutionally

place any legal limits, or arbitrary limits,

upon the right of existence of innocent, unborn,

living human beings, regardless of the

individual’s particular stage of existence or

development prior to birth, including the non-

viable.

ARGUMENT

A. Introduction

In 1973, the Supreme Court of the United

States, in the case of Jane Roe v. Henry Wade,

410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705, reh.

den., 410 U.S. 959, 35 L.Ed.2d 694, 93 S.Ct.

1409, reversed an 1854 anti-abortion law in

Texas, of which similar laws existed in the

majority of the States, that had endured the

wisdom of time and intellectual and scientific

contemplation for over a century. The Opinion

written for the Majority Court by Justice

Blackmun struck down the Texas law and declared

that a law prohibiting abortion at any stage

violated the Due Process Clause of the

Fourteenth Amendment of the United States

Constitution regarding one’s liberty which, the

Opinion declared, included a woman’s qualified

right to choose to end a pregnancy, but that the

right was not absolute. Justice Blackmun

further stated that subsequent to the first

trimester of pregnancy, States could only

regulate the method of abortion, but not stop

it. And finally, the Opinion stated that only

after the living child reached viability (the

ability to live, grow, and develop on its own)

could the States proscribe abortion.

B. Analysis of The 1973 Roe v. Wade Decision

The Opinion restated Constitutional Law,

Section 82, which, in defining person, stated

"the word ‘person’ as in the Fourteenth

Amendment does not include the unborn."

However, the Opinion stated that "the State has

a legitimate interest in protecting the

potentiality of human life which interest grows

and reaches a compelling point." The High Court

then, recounting the ancient history of abortion

law which, in an inordinate sense, occupies

almost half the Opinion, appeared to search for

Girection or justification for spreading the

responsibility for its monumental landmark pro-

abortion decision. The Supreme Court, in its

1973 Opinion, concluded that viability of the

unborn child may not be reached until the

twenty-sixth or twenty-eighth week of pregnancy.

The absolute-first-trimester right to abortion

was medically grounded on the rhetoric that

abortion was safer to the mother versus the

second or third trimester of pregnancy, without

any mention of the rights of the unborn child.

C. Right to Privacy as Irrelevant to Notions

of the Beginning of Human Life Entitled to

Full and Equal Protection of the Law

When the dust cleared, the United States

Supreme Court, referring to Roe v. Wade, stated

that Article 1196 of the Texas Code proscribing

abortion at any stage "must fall as

Unconstitutional." In reading the text of the

Opinion, it appears that the right of privacy

interpreted as a (remote) dimension of

-§ «-

"liberty," as protected by the Fourteenth

Amendment’s Due Process Clause, was the legal

hook on which the Supreme Court hung the hat of

its Opinion, but in reality, the right of

privacy appeared to be irrelevant to pregnancy,

notions of the beginning of human life, and the

medical, surgical procedure called abortion.

Further, the Court’s adoption of Constitutional

Law, Section 82’s definition of a person as "not

including the unborn," is an incongruity, and

apparently anarchistic now as the 1973 Landmark

Opinion itself recognized the unborn person as

@ person past the viability stage of pregnancy,

legally protected, thereby legally and

historically activating the Civil Rights of the

Unborn Person in that instance, under the laws

of the United States, entitling the unborn

person to "Equal Protection Of The Law."

The Opinion further appears to be

incongruous when declaring that the State has a

"legitimate interest in protecting’ the

potentiality of human life ... which interest

grows and reaches a compelling point" as if to

declare that a four-to-six-month old or younger,

nonviable, alive, unborn human being has no

potentiality for human life, an arbitrary and

unreasonable exercise of logic and reason, and

an indulging in a scientific fantasy divorced

from reality when considering the very healthy

and "kicking", normal, four to six month old

child alive and well in the womb, and the

younger child with a heartbeat’ readily

discernible, a reality to which almost every

woman who has given birth can attest. This is

an arbitrary fiction, at best.

The nonviable standard appears to be

shallow and without substance. Abortion is the

real limit on the potentiality of human life and

not nonviability, just as homicide is the

limiting of the potentiality of human life

beyond the viability or birth stage of a human

being. Within the framework of this concept and

perception and aside from illusion and fiction,

abortion and homicide are true synonyms, as they

both describe and define the actual "killing" of

a human being.

To offer an example regarding’ the

potentiality for human life, when a husband

determines that his wife is pregnant, is the

child not real and are their joys based on a

fiction and not the existence of a real human

life? If based on a fiction, what is the

reality basis of the couple’s jubilant

acknowledgment of the child?

It appears that the more realistic, honest

and non fictitious standard to measure the

"movement" of the potentiality for human life

should be that the potentiality for human life

commences at the Instant of Conception. This

appears to be in conformity with one of the

definitions in Webster’s New Collegiate

Dictionary defining viability as "capable of

growing or developing -seeds, eggs." A human

pregnancy that can result in the birth of a

human being-short of a fiction admitted to be

arbitrarily created regarding the "moment" of

potentiality for human life - is the true test

of the potentiality of human life. The arbitrary

selection of when human life was legally

entitled to begin, short of conception, was an

exercise in incredible insensitivity and

arrogance and so monumental a gesture that it

assumed a deity dimension in its far-reaching

results since the 1973 Opinion which ended the

existence of literally millions of unborn,

living people tantamount to a United States

doctrine of legal genocide of the innocent,

probably the first such instance in American

history. The awesome result of this arbitrary

and nonvisionary nonviability standard,

admittedly to have been whimsically "plucked out

of the air," has been nothing less than

inconceivable and staggering to the imagination,

if not mind-numbing. *The issue presently before

the Court in magnitude is probably the most

profound issue in human history and must be

dealt with correctly to avoid a continuing

tragedy of unimaginable proportions.

Considering the pro-abortion rhetoric, it

is only the insensitive and unenlightened, for

personal convenience and personal comfort’s sake

alone, regardless of a concern for the rights of

other persons, including the living, unborn

person, viable and nonviable alike, who are

hypocritical and less than honest or, in a

mitigating sense, their "senses" are truly

asleep in this instance. In considering these

people, their pro-abortion rhetoric - staunchly

refusing to recognize the biological reality of

the unborn, living and existing person inside of

a woman - is merely a convenient disguise

designed to obscure biological reality in order

to socially and psychologically justify the

homicide referred to as abortion which was

recently legalized by the 1973 Decision.

Even with the pro-choice individuals,

however, most of them among us are not to be

faulted as their vision is usually blinded and

has been obscured by the pro-abortion rhetoric.

If they could obtain a clear vision, beyond the

-10 -

rhetoric, of what they are really, biologically

engaged in regarding abortion, their natural,

instinctive and ordinary human compassion, it is

felt, would prevent them from doing so. As with

many social causes and social ills, the problem

again and almost invariably seems to be one of

vision or the lack thereof. Perception carved

by faulty rhetoric becomes one’s reality.

Regarding pregnancy and abortion as with

notions of one’s limited personal rights to

one’s own comfort, the critical misperception

occurs when the notion becomes one in which we

are dealing with one person and not two separate

people, being the mother and the unborn living

child nourishing itself from its mother’s "life

support system" within the womb much the same as

the identical living child subsequently

nourishing itself from its mother’s breasts

outside the womb.

The reality of the existence of two

separate people becomes a clear and a most

compelling biological scientific fact, divorced

-11 -

from theory, when realizing that the fertilized

ovum of a mother can be taken from her body and

transplanted into another woman’s body and

achieve birth. The scientific reality, hence,

becomes undeniable that the mother is just the

life support system to the separate person, the

unborn, existing individual inside of her, and

nothing more. From the successful trans-

plantation procedure now established by medical

science, it is a biological fact that the mother

and the child are not one in the same but two

persons. This is a necessary and critical

reality and perception and must be recognized

and acknowledged in order to substantively

consider and accurately assess, with clear

vision, the socially profound issue now before

this Most Honorable Court. Regarding the

abortion issue, our limitation is only the

limits of our vision. Scientific proof of the

fertilized ovum and the mother being two persons

rather than one appears to dispel the fiction

pushers’ argument that the nonviable child is

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not really a human being. In the face of

current medical science, that "convenient",

tongue-in-cheek fiction now has as much

persuasive force as convincing one that an apple

is really a doorknob, that black is white, and

that a nonviable, unborn, living human being is

really a kangaroo. The fact that Medical

Science is now removing organs and parts from

unborn, nonviable people for transplantation to

born people, indicates the unborn, nonviable

person is very much a living human being. At

some compelling point, the normal rational mind

repulses such fantasies so divorced from

reality.

It appears that society’s safe solution

and focus, whether it be from individual

preference or population control, is the

"prevention" of new human existence through

education and medical science, rather than its

extermination.

Even if one’s personal comfort and privacy

were relevant to abortion, for argument’s sake,

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there are also mothers whose privacy and

personal comfort are limited and compromised by

a child already born. Just as the mother’s right

to her personal comforts cannot exist as a

criterion to limit the existence or legal rights

of a one-week-old, living person, her choice of

her limited right to her personal comfort

similarly cannot be a criterion for limiting the

existence and legal rights of the unborn,

living, viable or nonviable person either.

Sometimes perception for many of us is obscured

by rhetoric and passion and we need to "blink"

back into reality. As an axiom, the preference

of one’s limited right to one’s own personal

comforts cannot be a sound reason for limiting

or destroying the legal rights or existence of

another human being. Such would be a dangerous,

legal precedent, indeed. The only separating

eifference between the born and the unborn

person is the shallow wall of the womb. Aside

from that thin separating membrane, both young

people are alive with one living in a water

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world and the other living in a world of air.

The only exception to abortion should be

when it places the life of the mother at risk.

Abortion, even in a case of rape, should not be

permissible because the child is living. The

focus should be upon the living child’s right to

existence. Regarding the victim mother, this is

one of the tragedies that we have to absorb,

among others, for living in an imperfect world.

The justification here is that Society obtains

a very strong grip on the control problem

invited when the law leaves even a small crack

in the door which could endanger these innocent,

unborn people. As a result, Society is safer by

retaining the integrity of the principle of a

reverence for all human existence, without

exception. The merit of this view becomes

clearer when considering that an innocent person

involved in an automobile collision and losing

a kidney could not take the kidney of another

human being in existence, born or unborn and

viable or nonviable. For this principal of

-15 -

reverence to continue to protect Society, the

focus must remain on the unborn living person’s

right to existence and not the victim mother.

To elucidate, if the rape victim’s unborn child

was beyond the viability stage, even under the

present law, the mother could not abort the

child. For a permanent, effective solution to

protect all members of society without

exception, the principle must remain fully

intact.

D. The Fallacy of the "Viability" Test Fiction

as_a Starting Point to Activate Equal

Protection of The Law and the Right to

Existence of the Living, Unborn Human Being

Another one of the definitions of viability

in Webster’s New Collegiate Dictionary is

“capable of living”. An in-depth consideration

of the logic of the viability stage as the

foundation upon which to activate the legal

rights of the living, unborn person, makes it

appear to be a weak fiction at best. Regarding

the soundness

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of this viability doctrine to justify prenatal

genocide, are not the crippled among us, the

individual entombed in an iron lung, the person

on life support systems, the quadraplegics, the

advanced infirm, the retarded, the paralyzed,

and the insane nonviable? Does this mean that

the nonviable persons among us are not entitled

to any legal rights and are to be stripped of

the birth right of existence? Wouldn’t this

notion be a backslide of civilization into the

jungle of our “beginnings” and a regression of

social evolution? Within this logical analysis,

the legal validity of the nonviability test,

regarding prenatal human life, collapses.

Stretching further now, substantively

considering the entire concept of viability,

since human viability, in some instances, is

further contingent upon new technology such as

"Preemies", prematurely born babies, whose

survival is contingent upon neonatally, and

astronauts who would be nonviable in space

except for the same technological life

-17 <

supporting systems, are these people truly

nonviable also? Does this mean, in principle,

that the nonviable people among us are

disenfranchised from the concept of Equal

Protection of The Law? Regarding the worthiness

of the nonviable, one of the greatest astro-

nomers of all time, a young American, still

living, can barely move a muscle and, in a

physical sense, is absolutely nonviable. If

these nonviable persons mentioned are not

legally disenfranchised based on nonviability

which appears to be the case, then wouldn’t it

be discriminatory, arbitrary, and unreasonable

to disenfranchise the nonviable, prenatal,

living human being based on nonviability? Such

a concept and notion regarding viability, in

view of the above comments, appears to be

patently unjust, arbitrary and grounded in the

illogical as Justice Rehnquist pointed out in

his Dissent.

A society that legally disenfranchises the

nonviable individuals would be a cosmetic,

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nonsubstantive, arbitrary and unsafe society,

indeed. Even the notions of abortion due to

preferred gender or abortion based _. on

inconclusive amniocentesis tests - which is

whimsical, genetic guessing especially in the

degree of imperfection, if any, due to the vain

parents who will only allow the life of a

perfect child if there ever was such a thing,

which again invites the same control problem

referencing the corrupt among us - appear to be

shallow and dangerous thinking. A young,

popular, teenage actor in a current, successful

television series wouldn’t be here if his life

and right to existence rested on a summary

amniocentesis test. These social notions

contain cosmetic treachery and represent a

reappearance of that familiar social cancer - an

absence of a reverence for human life - much the

same as Adolf Hitler’s notion of a world that

only had room for an Aryan Race of perfect,

blonde~haired and blue-eyed people. The only

ethical, legal axiom is: There is room for the

-19 -

imperfect individuals among us. This includes

the born and unborn, viable and nonviable,

alike. The imperfect have their place. If this

is not true, then it cannot be said that anyone

among us is legally safe for long in our ever

changing society. The civilized notion of the

sacredness of human existence is the permanent

anchor for a safe society in perilous times and

in peaceful waters, as well.

For the reasons stated, it is clear that

the nonviability test cannot stand as a sound

legal basis and logical justification upon which

to deny Equal Protection of The Law and the

right of existence to the unborn, nonviable,

living human being. In conclusion, viability

appears to be logically irrelevant to the right

to human existence of the unborn person, non-

viable and viable, alike. If this is the case,

then when do the rights of the unborn, living

person begin? This question must be answered

mercifully soon to deliver our Society from

confusion, vexation, anguish and turbulence. It

-20 -

appears there is and has always been only one

obvious and same answer to this question. On

revisiting the definition of viability as used

by the Court in Roe v. Wade as “the ability to

live, grow, and develop on its own", can it even

be accurately stated that a newborn person also

qualifies under this viability standard? Can a

newborn person really live and develop on its

own? If not ultimately cared for by others,

wouldn’t the newborn child also die within a few

days? Isn’t the newborn child, hence by

definition and analysis, non-viable also? In

this sense, even a child after having achieved

birth, does not qualify to the right of

existence under the ill-conceived, non-relevant

viability standard to activate the Civil Rights

of the unborn, living, viable person. This

arbitrary, nonviability fiction, more and more,

appears to be a quick fix to the very perplexing

abortion issue, indicating that vision on this

profound issue has been most difficult and slow

in coming.

-21 -

E. Roe vy. Wade As Introduction Of

Arbitrariness Into The law

It appears that the first-trimester-

absolute-standard-of-legally-allowing-the-

killing-of-the-fetus (the unborn but alive

child) rule - (based, in a legally "stretching"

sense, on a woman’s right of privacy and an

extension of that standard until the unborn

child is six to six-and-a-half months old,

declaring that, prior to that time, there is no

potential for human life) - even by medical,

scientific and layman standards, appears to have

been “plucked out of the air," as Supreme Court

Justice Blackmun, who authored that arbitrary

standard, according to recent news releases,

admitted to be the case. Justice Rehnquist’s

dissent attacking the relevancy, logic, and

soundness of the legal basis of the Court’s

landmark decision as involving the right to

privacy, appears to have merit.

Even if the definition of liberty were

extended to include the right to privacy, the

-22 «-

right is not an unlimited right as an unlimited

freedom is tantamount to anarchy, because the

right to privacy, or any right, does not include

the right to do whatever one chooses, and it,

like all rights, ends where the rights of

another person, legally recognized, begin. The

very notion of civilization, by necessity, is

the concept of limited rights.

For the protection of the mutual rights of

everyone, one must, on occasion, suffer the

discomfort of limited personal comforts and

freedoms in order for the rest of society to be

able to live in harmony. In this respect, the

rights of the populace supersedes and are at a

higher priority than one’s right to his or her

own individual, personal comfort. As an axiom,

one’s prefere.ce for one’s limited right to

one’s personal comforts cannot be allowed to

compromise the legal rights of another person

under any circumstances, otherwise, the con-

cepts of Due Process of Law and Equal Protection

of the Law are only illusions. It is submitted

-23 <-

that this axiom also applies to the unborn,

living, viable and nonviable person.

The "moment" of potentiality of human life

seems to be the question before the United

States Supreme Court in reconsidering Roe v.

Wade as regards the 1973 legal precedent which

allows the legal abortion (extermination) of

unborn, nonviable, alive human beings. When do

and when should the legal rights of the unborn

human being begin?

It appears that the new minority group, now

testing its legal rights in America’s continuing

civil rights movement, is our living, unborn

people. It further appears that the new

Subcategory of America’s Civil Rights Movement

now evolving in this Country is fetal rights.

The thesis and strong caveat of this writer is

that if the time, legalistically speaking, that

an unborn person or any person can be destroyed,

was arbitrarily selected or is arbitrarily

selected, it can be arbitrarily selected again

and extended, for argument’s sake, conceivably

and alarmingly, to the full length of pregnancy

and beyond pregnancy to the point of including

the infirm, the elderly, the retarded, the

insane, the crippled and the genetically non-

preferred, depending upon the sentiment of the

public and the political pressures of the times.

Why is this more possibility than fantasy? It

is because the basic building block of

civilization has been assaulted in the 1973

landmark decision legalizing abortion. That

building block is a reverence for human life.

Regarding a reverence for human life and

historically speaking, once there is a legal

"crack in the door", an expansion of the law

usually follows as the crack lends itself to

multiple future, legal interpretations by the

Courts and, hence, civilization itself is no

longer safe, as can be witnessed by the genocide

in Cambodia and Nazi Germany where the basic

social necessity of a reverence for human life,

without exception, appeared to be absent or

misperceived. The African-Americans experienced

-25 -

this misperception and irreverence in this

Country up until the recent Mid-Sixties,

indicating that we, as a Society, are not far

removed from this “social cancer", and moral

confidence at the present time is not justified.

To be a solid axiom, either human existence

is recognized as sacred or, legally speaking, it

is not. There is no in-between. To rest the

destruction of unborn, alive human beings -

especially the nonviable due to the absence of

logic supporting the viability extermination

doctrine - on an arbitrary standard, admittedly

"plucked out of the air” is, undeniably and

logically, to introduce acceptable arbitrariness

into the law. In this event, the law itself is

no longer safe. This is exactly what happened

in Roe v. Wade - an awkward and nervous position

for the Champion of Due Process of Law in which

to find itself during its up and coming

reconsideration and future possible

considerations of the soundness of its 1973

Decision legalizing abortion.

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F. An Endangerment of Society and Civilization

Resulted from the Roe v. Wade Decision

For argument’s sake, even if there is no

expansion of the non-reverence-for-human-life

(at all stages) legal crack in the door,

established in 1973 by the United States Supreme

Court in the legalization of abortion, the

arbitrary law is unsafe due to the control

problem inherent therein. Who is to control the

fraud invited by the 1973 Decision when the

frustrated mother and fee-hungry doctor

fabricate the eight or nine month old, unborn

child to be under six months old and legally

nonviable when aborted? Further, who is or

would be inquiring? To emphasize the alarming

seriousness of this very real control problen,

amply documented by State Prosecutors, even

under the present law legalizing abortion, using

the-26-to-28-week-of-pregnancy viability

standard, mass murder is and will be continually

occurring because of this mother/physician

corruption, previously mentioned. The law is

-27 -

impotent to protect these human lives because

“Pandora’s Box" has been opened. There is no

control and, historically, for the safety of

society, when there is no control, the courts of

this Country have always left the door slammed

shut to those areas of the law in order to avoid

the legal uncertainty that usually follows. The

1973 Landmark Decision unwisely departed from

this major, fundamental legal doctrine and blew

the top off of the United States Supreme Court’s

own legal Pandora’s Box.

In addition, because the lack of control

and inherent fraud, aforementioned, invite the

killing of significant numbers of living, unborn

human beings past the viability stage, human

decency mandates that the Courts find a solution

to where these viable unborn lives will be

protected under our laws. Moral compulsion

requires that the United States Supreme Court,

upon whom the ultimate responsibility for these

lives rests, engage the control problem in a way

that will spare these viable and legally

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recognized lives. There is only one sure way to

achieve the control of this problem and that is

the proscription of abortion.

The storm of confusion and the uncertainty

of the law will continue for decades, if not

generations, until all the pieces of what is

left of the basic, civilized notion and concept

of the sacredness of human existence, at all

stages, born and unborn, viable and nonviable,

are reaffirmed and put back in this legal

“pandora’s box". Thus, the lid will be slammed

shut permanently by the United States Supreme

Court to any notion of the non-sacredness of

innocent human existence and an absence of a

reverence for any human life being dangerously

injected into our laws.

The Past has indicated a historical yo-yo

of this ancient issue regarding the beginning of

human life with the result that many past and

present societies continue in uncertainty and

confusion in their laws. The abortion-issue-

historical yo-yo will continue to vexate

-29 -

societies until a basic axiom is finally laid

down. The only irrefutable and unassailable

axiom that seems to qualify to end the legal

uncertainty and to render society safe is the

social and legal recognition of the sacredness

of human eristence at all stages from its

Inception. It is assumed that this axiom would

have more validity, certainly, with reference to

innocent human existence. Only at this time

will this vexating crack in the door be slammed

shut for good for all future generations, and

only then will the uncertainty in the law be

removed, and a reverence for human existence,

born and unborn, viable and nonviable, be

established and anchored as a legal doctrine in

the United States of America, and a model axiom

created for other civilizations to emulate.

This would be a Noble Act, indeed, and an

advancement of civilization itself.

In terms of birth control and population

control, “prevention”, to repeat, rather than

“extermination” appears to be the most sensible,

-30 -

——

safe, wholesome and only ethical path to the

solution by a decent and guilt-free society.

As stated, it appears in the United States

that another Subchapter of the American Civil

Rights Movement has been born for another

minority regarding the civil rights of the tens

of millions of innocent, very much alive but

unborn human beings - the fetal rights movement.

At this moment, these tens of millions of

innocent, living, unborn human beings, viable

and nonviable alike, and hundreds of millions of

future, unborn, living human beings have no one

truly protecting their lives and have no Legal

Guardian or Champion of their legal rights and

rights to existence and safety, especially

considering the control problem invited by the

inherent fraud, except possibly the current

Supreme Court Justices of the Highest Court in

our Land. This is an awesome, enormous,

unenviable and overwhelming responsibility,

indeed.

-31 -

CONCLUSION

For the reasons stated, the United States

Supreme Court’s decision in Roe v. Wade must be

reversed and a United States citizen’s legal

right to abortion must be outlawed in all

instances - at home and abroad, to prevent

circumvention of the law, a civil rights

violation against an innocent, living, unborn

person entitled to the full and equal protection

of the law, and an attack against humanity, and

to insure the safety of all members of society -

to re-entrench the axiom that the notion of the

sacredness _of human __ “existence” _is ___ the

Respectfully submitted,

(Can Caw,

S J. CROOK

torney at Law

Suite 602

109 N. Oregon Street

One Texas Tower

El Paso, Texas 79901

(915) 544-4529

Fax: (915) 544-4563

Texas Bar No. 05111000

Amicus Curiae

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CERTIFICATE OF SERVICE

I, James J. Crook, certify that a true and

correct copy of the foregoing Brief Amicus

Curiae was mailed, hand delivered or UF aay to

all Counsel of Record on this the 124 aay of

February, 1992.

CML _

AMES J. CROOK

CERTIFICATE OF MAILING

I hereby certify, based upon my personal

knowledge of such, that the original and 40

copies of the foregoing Motion For Leave To File

Brief and Brief of James J. Crook as Amicus

Curiae Supporting Respondents were deposited in

a United States mailbox, with first-class

postage pre , within the permitted time, on

February / 1992.

Qa \ Gl

a was J. CROOK//

SWORN TO AND SUBSCRIBED BEFORE ME e

undersigned notary public, on this the ay

of February, 1992.

NOTARY PUBLIC irtéhd for

the State of Texas

My Commission Expires:

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