Constitutional Attorney Destroys Roe v. Wade!

I have on the phone with me Dr. Herb Titus. He is a constitutional and common law scholar. Dr. Titus holds the J .D. degree cum laude from Harvard and the B .S. degree in political science from the University of Oregon, from which he graduated Phi Beta Kappa.

He is an active member of the Bar of Virginia and an inactive member of the Bar of Oregon. He has admitted to practice before the United States Supreme Court, the United States District Court for the Eastern District of Virginia, the United States Court of Claims, the Army Court of Criminal Appeals, the U .S. Court of Appeals for the Armed Forces, and the United States Court of Appeals for the 6th, 7th, 9th, 10th District of Columbia and Federal Circuits.

Dr. Titus, thank you so much for joining us on Apology on TV.

Appreciate the invitation.

The History of Roe v. Wade and Judicial Overreach

All right, sir. Let's get right down to business. Dr. Titus, I'd like you to give all of our viewers, everybody that's watching this right now, a little bit of a historical understanding of Roe v. Wade and how that relates to the fight for ending abortion immediately at the state level.

Well, Roe v. Wade was decided in 1973 by a vote of 7 to 2, in which they struck down a Texas statute that prohibited abortion except to save the life of the mother. They purported to strike down not only the Texas statute, but to strike down Texas type statutes.

So they didn't really execute judicial power. They actually exercised legislative power in which they basically purported to rule the abortion statutes across the country were unconstitutional. And that is a matter that has never been disputed, that they did not limit themselves to the case before them.

They did not limit themselves to filing a order that applied only to the Texas statute, but rather a general order across the board. And being an illegitimate exercise of legislative power, Roe v. Wade has never really been challenged on that ground.

Instead, what has happened is that people have accepted the assumption that it was an exercise of judicial power based upon a bunch of precedents that protected a so-called right to privacy, even though the court itself recognized that the law that they had just struck down was one that had been on the books for many decades.

And it was only because of a number of privacy cases that had been decided by the court in the 1960s and early 70s that they went after the abortion statute.

Why Constitutional Amendments Are the Wrong Strategy

Oftentimes, people in the pro-life movement will talk about doing a constitutional amendment for the sake of the children who are being killed in abortion. Why do you believe that is wrongheaded when we talk about constitutional amendments?

Well, the Constitution is not what needs to be amended. The court opinions are what need to be amended. As Chief Justice Marshall wrote in Marbury Madison, the Constitution, as it is written, governs the courts just like it governs the state legislatures and the federal legislation.

And what has happened here is that the court has actually elevated its own opinion above the constitutional text and purports to base a rule of law on their opinion and not on correct interpretation of a text of the Constitution.

Matter of fact, they ignored the text and went off following their own precedents and as a result, came up with a decision that has no legitimacy whatsoever.

Court Opinions, State Statutes, and the Limits of Judicial Power

OK. Does Roe v. Wade create a law that can legitimately undermine any state statute that would criminalize abortion?

Today, people assume that a court opinion is a rule of law. That is not correct. A court opinion is a judgment as to what the law means and how it may apply in a particular case. Courts have no authority to make law.

It's never been within their jurisdiction to do so. And at the time that the Constitution was written, everyone knew that to be the case. They believed what Sir William Blackstone said was that the court opinion and law are not interchangeable in the same thing because a court opinion can mistake the law.

OK.

All right.

So if we have a state statute, like, say, for example, in the state of Arizona, we have a statute. It's 13 -360 -603, a person who provides supplies or administers to a pregnant woman or procure such women to take any medicine, drugs or substance or uses or employs any instrument or other means, whatever, with intent thereby to procure the miscarriage of such a such woman, unless it is necessary to save her life, shall be punished by imprisonment in a state prison for not less than two years, no more than five years.

Does Roe v. Wade do away with that state statute?

No. That statute remains on the books unless it's repealed by the Arizona state legislature itself. There's nothing about a court opinion that erases a statute, even when the court concludes that to apply the statute would be unconstitutional.

This is a matter that was well known, even in the New Deal era, where courts were striking down minimum wage laws. And the question arose when the court changed course with regard to minimum wage laws.

Well, do we have to pass the minimum wage law again? And the answer was, no, it remained on the books and was and was available for enforcement. What it means when you have a opinion like Roe v. Wade is that you still have a law that can be enforced, but the courts are going to stand in the way of the enforcement of that statute.

How States Can Build a New Record to Overturn Roe

OK, so say we we find ourselves in this conflict, Dr. Titus, where there are legislators who want to do to uphold justice for these fatherless children. They want to uphold justice for these children who are being slaughtered in the womb.

And they would like to see an immediate abolishment ban of abortion at the state level. They'd like to see justice done for the unborn. And they'd like to see the abortion issue be a criminal issue at the state level.

But they're oftentimes afraid of a higher court simply striking down that attempt. What kind of advice would you have for legislators in a state that want to pursue statutes that criminalize abortion at the state level?

But they have a fear that a higher court will simply disagree with them, give a decision that would that would attempt to strike it down. What kind of advice would you have for them? Are they are they bound by those sorts of decisions?

Or does our system of government allow for lesser magistrates to resist that form, that that type of lawlessness and tyranny on the unborn?

Well, it would not be strategic to impose the Roe v. Wade and the Wade line of cases based upon, say, for example, the Arizona statute that you just quoted, because then you would be litigating the case basically upon the same record as was litigated in Roe v. Wade in the first place.

OK, you would want to do strategically as lower magistrates would be to put together a plan, a strategic plan of how to establish an entirely different foundation and framework for a different law prohibiting abortion.

For example, Roe v. Wade was based upon an assumption that the baby in the womb of the mother was just potential human life. Right. Since Roe v. Wade, there's no question that the baby is fully human at the very moment of conception.

Yes, that needs to be put into the record that you're now passing a statute based upon the latest findings, scientific findings, genetic code findings that a baby as a human being, as a matter of science at the moment of conception.

The second thing you would want to address would be that the issue is not just the life of the baby. The issue also relates to other life issues that are impacted by the abortion decision, that it undermines the integrity of human life in other situations such as in euthanasia.

And so you would want to establish a policy of sanctity, sanctity of human life that transcends the baby. The second thing you would do would be to demonstrate that the woman in terms of her choosing an abortion in Roe v. Wade, it was assumed that choosing abortion would be a much safer process than to give birth to a natural child, to a baby.

There's lots of data out there which show that that's an untrue assumption, that the dangers with respect to the mother are very great and even greater by having an abortion than bringing a child to term.

So that's very important to do. And to also show that Roe v. Wade was based upon a false picture of what the abortion process would be. It was set upon the assumption that a doctor in very close relationship would discuss the pros and the cons and everything and before the abortion would ever take place.

Well, experience has shown that that just doesn't take place. Planned Parenthood doesn't do that. They don't sit down with clients. As a matter of fact, in recent cases, it's been shown that women who get abortions get them by themselves usually or some boyfriend who doesn't want to have the baby, which brings up, of course, the other thing is that you have to show that there's adverse effects upon the family.

And so by going back and re-examining all of the factual and moral bases, you would come up with a new statute based upon new findings. And in that sense, you wouldn't be directly challenging Roe v. Wade.

You'd actually be distinguishing Roe v. Wade because the factual picture that's painted in Roe v. Wade is just simply not true.

Abortion Remains Criminal Under State Law

Yes. Yes. So, Dr. Titus, if there are states in our union that have current statutes on the books prohibiting or criminalizing abortion in that state, when abortions are performed in those states today with those current statutes, even with Roe v. Wade, what we're saying is, is that there are criminal acts being committed in those states when abortions are performed.

Well, yes. You know, you have to think you're dealing with two different courts. According to public opinion, it's very important to disabuse people thinking that Roe v. Wade legalized abortion.

Right. That's impossible. Yes, that's impossible.

That's right. The court can't make straight what God has made crooked. They can't deny to a baby the full protection of laws prohibiting homicide. It just simply isn't true. So the rhetoric that we engage in is very, very important or otherwise people would think that, well, we're challenging a legal rule.

No, we're not. We're challenging a rule that is based upon an illegitimate statement of facts and assumption of law. And it's important in the court of public opinion to talk in those kinds of terms. The other challenge that you have that you're just suggesting is the lower magistrate, the governors of states in today's political climate are very reluctant to interpose between the people of the state and of the Congress or of the court.

And there has to be a cultivation amongst the lower magistrates, such as governors and attorneys general, to recognize that they have a moral and legal obligation to stand on the law and not just hide behind the skirts of the court that has decided a case in the.

Wrong way. OK, Dr. Titus, is it your expert legal opinion that abortion should be abolished at the state level? Is it your expert legal opinion that states can engage in this kind of legislation lawfully?

Well, certainly.

And that's a very important point. Until the United States Supreme Court constitutionalized the abortion issue, abortion was considered a state matter. And in our federal system, it was a matter that the state should decide, not a matter that the United States should decide, much less the United States Supreme Court making the decision for the people of each state.

So it's extremely important for the states to step up to the plate and get back to the business of protecting innocent life and not allow the federal courts to push them around. But that requires them to take a position about what law is, that they've got to come to the conclusion that a court opinion is not law.

It's never been considered to be law by presidents from Jefferson and through through Lincoln and Democrats, as well as Republicans. We need some courageous governors to interpose and protect the precious life of babies in the womb of their mother.

All right. Dr. Titus, you are a spectacular gift. And I'm just grateful for all the time you spent with me over the last two weeks talking and in particular doing this interview with us. So we're grateful for you, sir, and your expertise.

Thank you so much. Thank you for having me.

God bless you, sir. God bless you.