New Hero

After my debates with Texas Alliance for Life regarding their opposition to Personhood and their generally complacent attitude about taking action that would actually halt the killing of children, I was feeling pretty down about the Texas prolife movement. Then I met an 81-year-old attorney from Corpus Christi named Cliff Zarsky. Ok, we didn't really meet, but we did have a very enlightening phone conversation.

Mr. Zarsky has done extensive research into both statuory and case law regarding the issues of individual personhood and the inalienable right to life. He has built a very strong case for destroying Roe v. Wade. Of course, to present such a case to a court, one needs to have some kind of standing, something like a criminal indictment. So in January, Mr. Zarsky purposely went out to get arrested for criminal trespess at an abortion clinic in Corpus Christi. An account of his arrest can be found here: http://www.all.org/newsroom_judieblog.php?id=2911.

Mr Zarsky has written a legal brief in conjunction with his criminal trespass case which details several points on which Roe v. Wade should be discarded. The entire brief can be found here: http://personhoodeducation.files.wordpress.com/2009/06/cliff-zarsky-personhood-brief.pdf , but the section I would like to highlight here in the blog is one in which the hypocrisy and basic dishonesty of the Supreme Court's Roe v. Wade decision is detailed:



F. THE “PERSONHOOD” OF THE HUMAN FETUS IS ESTABLISHED BY COURT DECISIONS THAT UNBORN FETUSES ARE “PERSONS” FOR INCLUSION IN THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
In the U.S. Supreme Court’s case of Roe v. Wade, Justice Harry Blackmum claimed, “The word person, as used in the Fourteenth Amendment, does not include the unborn.” He came to this conclusion by asserting that “no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment, but conceded that if the “personhood” of the fetus “is established [the case for abortion], of course, collapses, for the fetus’ right to life would then be guaranteed by the ‘Fourteenth Amendment. Roe, 410 U.S. at 156-157.

A 1885 Supreme Court case clearly establishes the “personhood” of the fetus. The Supreme Court upheld the right to due process for preborn persons in the womb in McArthur v. Scott 113 US 340,440 (1885), holding that any court case is “null and void” unless all of the parties to the controversy are represented in court, because a person must have the opportunity to present their side of the story in court. Id.387,391.

Preborn children in the womb were cut out of a probated will without proper representation in court. The Supreme Court ruled in their favor, since their right to due process was violated: “A decree annulling the probate of a will is not merely irregular and erroneous but absolutely void, as against persons interested in the will and not parties to the decree, and as the parties these plaintiffs were neither actually nor constructively parties to the decree setting aside the will of their grandfather, it follows that that decree is no bar to the assertion of their rights under the will.” Id.404. Where a court fails to grant the fundamental right of representation to any party whose rights are being decided upon, that case is void for lack of due process. The Court also held that preborn persons in the womb can hold vested rights, not just rights “contingent upon live birth,”id.384, and therefore the class of preborn in the womb “Posterity” are included in the standard legal definition of a person “one (as a human being, a partnership, or a corporation) that is recognized by law as the subject of rights and duties” (Merriam-Webster’s Collegiate Dictionary, 11th ed. The applicable Latin maxim is coram no judice, and this was the basis for the Court’s decision in McArthur v. Scott, 404. Since the Court denied a motion for a guardian ad litem to join in the arguments in Roe, Doe v. Scott, 321 F. Supp. 1385 (N.D. III. 1971), cert denied 409 U.S. 817 (1972), so too should Roe v. Wade be considered null and void by this rule of law per McArthur v. Scott.

Neither abortion “survivor” children nor unborn children threatened and endangered by abortion were represented before the U.S. District Court or the U.S. Supreme Court in Roe. Abortion “survivor” children born in this country are U.S. citizens (with extremely minor exceptions), yet they are doomed to die and die primarily due to prematurity, abortion death or lack of care. Unborn children, with well recognized legal postures under the laws of the United States of America, Texas and other States, are killed outright by abortion. Abortion “survivors” and unborn children are persons or entities with legal personalities under the due process clause of the 5th Amendment to the U.S. Constitution. The Judgment’s of the U.S. District Court and the Supreme Court in Roe, rendered without any representation of such victims by guardian or next friend (or by counsel for such guardian or next friend), constituted naked deprivation of life, liberty and property without due process of law, in violation of the 5th Amendment. Accordingly, such Judgments are unconstitutional and void as to them. McArthur v. Scott, 113 U.S, 340, 391-392, 404 (1885) (unborn children); Pennoyer v. Neff, 95 U.S.714,733-734 (1878) (U.S. citizens).

Neither the U.S. District Court, nor the Supreme Court had personal jurisdiction over such abortion “survivor” or unborn children in Roe. Yet each such category of children was affected vitally by those proceedings, and had a right to be before the Courts, therefore, were unconstitutional and void as to them. Ibid.

Moreover, this deficiency operated to divest the U.S. District Court and the Supreme Court of authority to pronounce judgment affecting them personally. Accordingly, the Judgment of such Courts, rendered without personal jurisdiction over the Infant Victims of abortion, are void as violative of fundamental principles of personal jurisdiction. The unborn children who were conceived and killed by abortion after Roe could not be affected jurisdictionally by Roe in their rights posture, yet they die from Roe. Id at 391,392, 404.

In McArthur v. Scott, the Supreme Court recognized the due process rights of preborn persons in the womb which is the essence of personhood, and is in keeping with the Supreme Court’s own historic understanding of the word “person.” In United States v. Palme, 14-17 U.S. 607, (1818), Chief Justice John Marshall stated, “The words ‘any person or persons,’ are broad enough to comprehend every human being.” Justice Stephen Field stated in Wong Wing v. United States, 163 U.S.228, 242 (1896), “The term ‘person’ is broad enough to include any and every human being within the jurisdiction of the republic…This has been decided so often that the point does not require argument.”

The hypocrisy in Roe is finally recognized in this: It is impossible to further the common good without acknowledging and defending the right to life, upon which all other inalienable rights of individuals are founded and from which they develop.

The Roe decision asserted “no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.” But there are several cases cited herein and more that clearly hold unborn humans are protected by the Fourteenth Amendment, and that any decision denying due process and equal protection to the unborn is null and void. Is it not the duty of the trial and appellate courts to accept the stare decisis of the highest court protecting the right to life guaranteed in the Fifth and Fourteenth Amendment? That would be more relevant in this case, because the cases relied upon herein by the Defendant were unknown and not considered by the Supreme Court in Roe, and seven of the Justices agreed that if “personhood of the fetus is established, the case for abortion] of course collapses, for the fetus’ right to life would then be guaranteed by the Fourteenth Amendment.” How could any court hold that the “personhood” of the unborn human has not been established by the multitude of cited cases? Justice Stephen Field stated in Wong Wing v. United States, 163 U.S. 228, 242 (1896), “The term ‘person’ is broad enough to include any and every human being within the jurisdiction of the republic…This has been decided so often that the point does not require argument.”

In Steinberg v. Brown 321 F. Supp. 741 (N.D. Ohio, 1970) the court rejected a challenge to Ohio’s abortion laws, holding that the implied right to privacy must inevitably fall in conflict with the express provisions of the Fifth and Fourteenth Amendments that no person shall be deprived of life without due process of law. The difference between this case and Griswold (overturned a ban on the use of contraceptives) is clearly apparent, for here there is an embryo of a fetus incapable of protecting itself.” Id. 745-46.

As the court in Steinberg explained, “a new life comes into being with the union of human egg and sperm cells,” Id at 746, and “[o]nce human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state a duty of safeguarding it,” Id 746-47. As a legal matter, an absence of case support is irrelevant and there may well not be cases holding new-born infants or other classes of humans are persons which would not mean they are beyond the scope of the Fourteenth Amendment.

Nelson v. Galveston, 14 S.W. 1021, Supreme Court of Texas 1890 held in agreement with Lord Hardwicke, “that a child in the mother’s womb is a person in rerum natura, and that by rules of the civil and common law “she [the child] was to all intents and purposes a child. . . and is to be considered as living for all purposes.” The court ruled that a posthumous child may recover damages for the father’s death.

Gray v. State, 77 Tex Cr. R. 221 (1915), involves the review of Gray’s indictment for producing the abortion of Sadie Moore’s child. Though the indictment was tested to see if it complied with state statutes, the court examined the common law before doing so (and affirming the conviction) said most states held abortion can be criminally prosecuted any time after conception.

Leal v. C.C. Pitts Sand and Gravel, Inc., 419 S.W.2d 820, Supreme Court of Texas, 1967 upheld Nelson v. Galveston above, that a viable infant born alive would have had a cause of action for prenatal injuries sustained in an automobile accident had the infant survived.

Wagner v. Finch, 413 F3d 267 Fifth Circuit (1969) held that a child of deceased father, born after the father’s death is sufficiently in being to be capable of living with it’s father at the time of his death, and the fact that the worker died before birth of the child already “in being” is no legal or equitable reason to prohibit child from social security benefits.

Raleigh Fitkin-Paul Morgan Memorial Hospital v Anderson 201 A.2d 537,538 (N.J. 1964) held that the unborn child is entitled to the law’s protection and that an appropriate order should be made to insure blood transfusions to the mother in the event that they are necessary in the opinion of the physician in charge.

McArthur v. Scott’s holding, and other cases following that holding of the procedural right to due process, is a right that is the fundamental law of the land, and a right without which all other rights would be unenforceable. If the rule of law means anything, any court would be justified under our Constitution in disregarding Roe and following McArthur v. Scott, and with the super abundance of other evidence of personhood of the unborn there is a legal and moral mandate to uphold the preborn human in the womb as a “person” under the Fifth and Fourteenth amendments of the United States Constitution.



Cliff Zarsky deserves our unwavering support and our prayers in his efforts to support the right to life of all human beings. The progress of the criminal trespess case can be followed at Corpus Christi Right to Life, and I will be posting updates to it here on the blog as well.