Amicus Curiae Brief — Scholberg v. Lifchez

[ Suprema Court, US

BIHED

. gon 9 1991

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cnccniy F. SPANIOL, SR

No. 90-922 ue

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In The

Supreme Court of the United States

October Term, 1990

ANDREW D. SCHOLBERG, et. al.,

Petitioners,

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AARON S. LIFCHEZ, et. al.,

Respondents.

AMICI BRIEF OF GEORGE LUCAS,

THE NATIONAL BLACK COALITION FOR

TRADITIONAL VALUES, AND OTHER BLACK

LEADERS AND BLACK ORGANIZATIONS

AS AMICI CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

ERNEST L. JOHNSON

JOHNSON, TAYLOR & THOMAS

Attorneys at Law

5700 Florida Blvd., Suite 209

Baton Rouge, LA 70806

(504) 929-7676

Counsel for Amici Curiae

TABLE OF CONTENTS

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Federal Constitutional Provisions..................0+: ii

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SUMMARY OF ARGUMENT ..........-ccccssccscssccccccccccoscce ro

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Note: This Amici Brief is being filed with the consent of

all of the parties. Consents are on file with the

Office of the Clerk.

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TABLE OF AUTHORITIES

Federal Cases

Dred Scott v. Sandford, 60 U.S. 393,

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Griswold v. Connecticutt, 381 U.S. 479,

85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)......................... 7

Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705,

Bg EE Cee 1. 3, & 7

United Airlines v. McDonald, 423 U.S. 385 (1977)........ 9

Webster v. Reproductive Health Services, 109 S.Ct.

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Federal Constitutional Provisions

U.S. Constitution, Amendment XiMl..................... 4,6,8

U.S. Constitution, Amendment XIV...................0.00e000 8

State Statutes

Illinois Revised Statutes, Chapter 38,

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Miscellaneous

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Address given by the late Dr. Martin Luther King, Jr.,

on August 28, 1963 in Washington, D.C.............cceeseeeeeeeeees 10

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INTEREST OF AMICI

The amici are Black leaders and Black organiza-

tions from throughout the United States of America who

are shocked that unborn children are soon to be sold for

experimentation and body parts in the State of Illinois

since the Illinois law prohibiting such abominations has

been struck down by the federal courts to date.

t

As the decendants of slaves and fully aware of the

contribution that Black Americans have made to this

Great Nation, the amici stand firmly against the idea of

unborn children being considered the chattel property of

their mothers. The sale of unborn children is slavery

which must not be allowed to raise its ugly head again in

this Great Nation. To suggest that privacy rights extend

outside a woman's body proves the unsoundness of Roe.

The amici strongly urge that the Supreme Court of

the United States stop this tragedy before it begins and

not faint before the task as the majority did in the

infamous Dred Scott decision.

George Lucas and the

National Black Coalition for Traditional Values

Petersburg, Virginia

Rev. Hiram Crawford and the

Pro-Life Pro-Family Coalition

Chicago, Illinois

Dr. Dolores Bernadette Grier and the

Voters Against Abortion

New York, New York

Pastor Joe Dallas and the

Blacks for Life

Milwaukee, Wisconsin

Rev. E. W. Jackson, Sr., and the

Exodus Movement

Boston, Massacusetts

Rev. Cleveland Sparrow and the

Sparrow World Baptist Church

Washington, D.C.

Barbara Bell and the

Massachusetts Blacks for Life

Medford, Massachusetts

Rev. St. George Cross and the

Society for the Advancement of Families Everywhere

Randalls Town, Maryland

Pastor Greg Keith and the

Black Alliance for the Family

New Brighton, Minnesota

'

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SUMMARY OF ARGUMENT

As Black Americans, we are well aware that the

infamous Dred Scott decision denied the humanity of our

ancestors who helped form this great nation. When the

Court denied standing to Dred Scott, he was denied the

right to protect himself from any wrong--no matter how

unjust.

As Black Americans, we are also well aware that

the infamous Roe v. Wade decision has decimated our

people. As Black Americans constitute an ever dwindling

percentage of the American people, we have the largest

percentage of abortions to live births. The number of

Black Americans whose young lives have been termi-

nated by abortion has already far exceeded the number

of Black Americans who were freed by the Emancipation

Proclamation and the Civil War.

And now once again the federal courts have cho-

sen to deny humanity. The District Court and the

Appellate Court denied standing to Baby Scholberg. Just

like Dred Scott, she was denied the right to protect herself

from any wrong--no matter how unjust.

If this Court does not grant certiorari, Black

unborn children will be sold into the slavery of experi-

mentation and the medical market for body parts. Make

no mistake--young Black unborn babies procured from

financially desperate Black expectant mothers will pro-

vide the majority of these children. Once again, Black

Americans will be slaves. Only reversing both Dred Scott

and Roe v. Wade ab initio can right the wrongs that these

decisions have perpetrated. As Black Americans, we ask

for justice for all.

ARGUMENT

The United States Constitution, Amendment XIII,

provides that:

Neither slavery nor involuntary servitude, except

as a punishment for crime whereof the party shall

have been duly convicted, shall exist within the

United States, or any place subject to their juris-

diction.

Nowhere in the the Thirteeenth Amendment is

either the word "person" or "citizen" mentioned. Clearly,

slavery would include the sale of any "citizen" or any

"person" regardless of whether that "person" is a "citizen."

But the Thirteenth Amendment is much broader than

that.

At the time of the enactment of the Thirteenth

Amendment the vast majority of Black Americans were

not recognized as either "citizens" nor "persoms" under

then recent judicial decisions. See Dred Scott v. Sandford,

60 U.S. 393, 16 L.Ed. 691 (1857).

The Thirteenth Amendment extended to all Black

Americans who were then considered non-persons.

The original intent of the Thirteenth Amendment

is to prohibit the sale of any human being--whether that

human being is a citizen, a person or a non-person.

The principle intent and the principles intended

by the Thirteenth Amendment bars the sale of unborn

children. The sale ofan unborn child is an act of slavery.

Simply stated, it is unconstitutional to sell, to offer

to sell, to buy and to offer to buy an unborn child within

the United States, or any place subject to their jurisdic-

tion.

It matters not that the sale might have originated

while the child was still in utero. It matters not that the

child is not considered a person under either state or

federal law. The sale is still an act of slavery.

We realize that some medical knowledge might be

gained by selling unborn children for experimentation.

Certainly, the Nazi experiments on concentration camp

victims did yield some medical knowledge. But that did

not make these actions of the Nazis any less reprehen-

sible or any more justified. In like manner, selling unborn

children today is reprehensible and not justified. But

what is most important, it is unconstitutional.

How then can such an abominable practice be

even suggested? Certainly, when mention is made of

transferring brain tissue to Alzheimer's and Parkinson's

patients, we are speaking of fully formed babies. Simi-

larly, when mention is made of transferring pancreatic

tissue to diabetic patients, we are also speaking of fully

formed babies. And when mention is made of scalping the

child and transferring the scalp to balding men, we are

also speaking of fully formed babies.

Moreover, we must not forget that only live tissue

can be used in such transplants. Nancy Cruzen suffered

irreversible brain damage through being denied oxygen

for just six minutes. Latter term saline abortions in

which the child dies in utero will not work. The child is

dead in utero for too long. The tissues and organs of the

unborn child are no longer suitable for transplanting.

The taking of organs from fully formed babies can

be done either through caesarian abortions or induced

abortions in which the child is born live. And while the

child is beginning to die, since he is denied proper

medical care, the organs are removed from the child's still

living body.

How can an expectant mother decide that a child

be harvested for body parts when the same child is of

sufficient maturity to survive sans utero ina hospital unit

specifically designed for premature babies of the same

maturity? And the child can be alive sans utero when the

organs are removed from his little body?

The answer is found in the tragic Roe decision. Roe

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

(1973). If ever a case has proven unsound in principle

and unworkable in practice, Roe is the one.

In the instant case the District Court abandoned

both the case and controversy requirement and the

limitations imposed upon facial void for vagueness

challenges. The Appellate Court failed to acknowledge

the legal personhood of unborn children in the State of

Illinois since the Webster decision. Webster v. Repro-

ductive Health Services, 109 S.Ct. 3040, 106 L.Ed.2d 410

(1989), and Illinois Revised Statutes, Chapter 38, Section

81-21. Both courts failed to recognize the apparent

constitutional violations of the Thirteenth Amendment.

We realize that the Court is waiting for an appro-

priate case to thoroughly review the Roe decision. We

strongly believe that this case is the appropriate case. No

case more clearly presents the unworkability of Roe. No

case more clearly presents the unsoundness of Roe. And

if not to stop the harvesting of the unborn, when’?

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Moreover, we firmly believe that the original intent

of the Consitution and the governing principles intended

by that great document require the explicit reversal of Roe

and more.

First, each and every State of this Great Nation

must consider the life and liberty interests of all unborn

children from conception.

Second, each and every State of this Great Nation

has an affirmative obligation to safeguard the life and

liberty interests of every viable unborn child. All viable

abortions must be prohibited unless necessary to save

the life of the expectant mother and even then all neces-

sary efforts must be made to save the life of the child.

If in the exercise of her first liberty interests found

in Griswold v. Connecticutt, 381 U.S. 479, 85 S.Ct. 1678,

14 L.Ed.2d 510 (1965), a woman becomes pregnant, her

second liberty interests must be balanced against the life

and liberty interests of her unborn child. Once a child

becomes viable, the expectant mother must allow the

unborn child to live.

Certainly, the responsibilities and obligations of

the expectant father are established by a single act of

intimacy. He can be ordered to pay the medical expenses

incurred in the birth, child support, medical and dental

expenses incurred during the minority of the child and

college or trade school expenses upon the child reaching

adulthood. All of these responsibilities and all of these

obligations come from one act of intimacy.

In like manner, an expectant mother carrying a

viable child should have the responsibility and obligation

to give the child life.

Moreover, the infamous Dred Scott decision must

be reversed. We realize that the purpose of the Thirteenth

Amendment is to end slavery and involuntary servitude

of Black Americans. We realize also that the purpose of

the Fourteenth Amendment was to establish citizenship

of Black Americans. Finally, we realize that these two

Amendments to the Constitution effectively reverse the

result of the infamous Dred Scott decision.

However, our forefathers who helped form this

Great Nation prior to the enactment of these two

Amendments are still not considered sufficiently human

to protect themselves in court from any wrong--no matter

how unjust.

Our forefathers are one of only two groups of

Americans whose total humanity is still denied. The

other group is unborn children.

The infamous Dred Scott case was wrongly decided

then and must be reversed ab initio now. Sucha reversal

would allow every Black American to look to his or her

ancestry with pride. And such a reversal would allow the

Court to recognize the life and liberty interests of unborn

children. Only then will there be justice for all.

Finally, we note that the petitioners have dealt

extensively with the elements of intervening as of right,

with the requirement of being an intervenor as of right

being subsumed within the more demanding requirements

of being a non-joined indispensable party.

The threshold element of timeliness is met in four

ways.

First, since a court itself can raise the issue of non-

joined indispensable parties even on appeal, the motion

of non-joined indispensable parties to intervene at the

district court level must be deemed timely as a matter of

law. To hold otherwise--allowing the court itself to raise

the issue at a late time while on appeal, but not allowing

the non-joined indispensable parties to raise the issue

themselves--would erect a logically inconsistent frame-

work within the law.

Second, for similar reasons a motion to intervene

at the district court level to raise issues of the court's

subject matter jurisdiction must be deemed timely as a

matter of law, for such issues can likewise be raised sua

sponte on appeal.

Third, the person whose interests were sought to

be upheld, Baby Scholberg, was incompetent throughout

the course of the proceedings. How can an incompetent

be charged with being untimely?

Fourth, caught between the need on the one hand

to act swiftly to defend their interests once it can be seen

clearly that the representation can not be deemed ad-

equate, and the need on the other hand to refrain from

troubling the court with a motion to intervene prior to

that time, the motion by the petitioners to intervene in the

district court was made at precisely the time that best

complies with these two opposite considerations. See

United Airlines v. McDonald, 423 U.S. 385 (1977)

As to the element of having an interest in the

matter, the interest of not being experimented on or sold

is plainly seen.

As to the element of that interest being impaired,

as a practical matter, if intervention is not granted, any

delay caused by pursuing collateral proceedings would

expose the unborn children of the State of Illinois to death

or maiming during the pendency of the proceedings. This

is a rather practical impairment of their interests.

The element of the inadequacy of the representa-

tion has already been fully discussed by the petitioners.

In conclusion, we turn to the words of Dr. Martin

Luther King, Jr., when he spoke on August 28, 1963 in

Washington, D.C.:

I have a dream that one day this nation will rise

up and live out the true meaning of its creed: "We

hold these truths to be self-evident; that all men

are created equal.”

We truly believe that the day has come for the

Supreme Court of the United States to rise up and to say

no, not in America, for here we are all truly equal.

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CONCLUSION

For all of the foregoing reasons, we are asking The

Supreme Court of the United States of America to grant

the Petition for Writ of Certiorari.

Respectfully submitted,

ERNEST J. JOHNSON

JOHNSON, TAYLOR & THOMAS

Attorneys at Law

5700 Florida Blvd., Suite 209

Baton Rouge, LA 70806

(504) 929-7676

Counsel for Amici Curiae

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