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PINE BLUFFS — Recently the judicial focus has been on the Supreme Court and the necessity to appoint “strict constructionists” or “originalists” to that bench. A strict constructionist or originalist judge is 1) a jurist who knows and respects the limits of his own power, and 2) because he does, he will not legislate from the bench but will interpret the law and leave lawmaking to the legislative branch.
Newly appointed Chief Justice John Roberts has been praised as just such an originalist, while the nomination of Harriet Miers was opposed by conservatives primarily because it could not be determined ahead of time that she was also of this mindset. She did not have a strong public conservative record on the important issues of the day. That was construed by some to mean that once on the Court she might be unduly influenced and therefore turned by the liberal justices into a force for the opposition. Against mounting opposition, she withdrew her name from consideration, opening the door to the nomination of a jurist more in the Roberts mold.
But are judges who are strict constructionists or originalists good for the conservative movement generally, and for the Pro-Life cause? The answer is yes and no. Now don’t get smart with me; I’ll explain.
That originalist judges exist in small numbers throughout the country is true. That decisions by originalist judges will not always — but will more often than not — yield conservative policy victories is also true. That this is not necessarily a bad thing is also true. State of Wyoming v. Foust, decided September 20, 2005 in Fremont County, by District Judge Norman Young is a case in point.
In this case, Michelle Foust gave birth to a son in October 2004. Police, responding to an anonymous tip that Foust had used methamphetamine during pregnancy, tested her and her newborn son. Mother and child tested positive for the drug, proving that it can be passed along to an unborn child through the mother.
In July 2004, in its legislative wisdom, the Wyoming Legislature had enacted this law: “No person shall knowingly and willingly cause or permit any child to absorb, inhale or otherwise ingest any amount of methamphetamine.” Note the use of the word “child” and the absence of words such as “unborn child” or even “fetus.” The penalty for violating this statute is imprisonment for up to five years and a fine of up to $5,000.
According to an un-attributed article in the Wyoming Tribune-Eagle (9/27/05), trial Judge Young (9th Judicial District) ruled that the above-mentioned statute does not protect unborn children from drugs taken by expectant mothers, and therefore Foust could not be charged with endangering her child by using meth during pregnancy. He does not believe the law applies to fetuses or unborn children.
“Foust’s defense attorney,” says the aforementioned article, “argued that the statute didn’t apply since the alleged meth use occurred during pregnancy . . . and a fetus is not a child, [and] Fremont County Attorney Ed Newell and his Assistant Tim Gist countered by arguing that at the moment of birth the fetus became a child, that Foust had knowingly used meth, and the statute applied because the child was born alive, tested positive for the drug, and the only way that could have happened was through the mother.”
If coming from a strict constructionist trial judge, this decision is understandable. Judge Young’s refusal to legislate from the bench and expand the definition of “child” to include “unborn child” and/or “fetus” is laudable, even though the Pro-abortion folks probably turned cartwheels and did handstands in the hallway after the decision was announced. In deciding the way he did, Judge Young, intentionally or not, showed respect for the “limits of his power” and for the Wyoming Legislature in accepting defense counsel’s argument that when legislators wish to protect a fetus they have traditionally included in their bills the words “fetus” or “unborn child.”
Mr. Newell, not surprised by the decision, feels that the Judge’s ruling makes it clear the Legislature must amend the law if the state is to protect unborn children from the harmful effects of ingesting drugs through their mothers during pregnancy. I agree.
Of course, there is the economic argument that there’s a compelling state interest in favor of such legislative action; that the medical system is unduly burdened by women who endanger their children, born or unborn, by taking drugs while pregnant. When that happens, we, the taxpayers must foot the bill. As the billboard directed at meth users says,”It’s not just about you!”
To fix the problem, two steps are necessary. First, Pro-Life Senators and Representatives such as Jim and “Pete” Anderson, John Barrasso, Bob Brechtel, Gerald Gay, Tom Lubnau, Jerry Eikel, Elaine Harvey, and others, must unite on this matter and cause new bills to be drafted and submitted in both houses during the coming session in Cheyenne. Then, when those bills get to committee — perhaps Labor, Health & Social Services will be the one — we must not accept outcomes such as occurred last year, when Committee Chairmen allowed excellent bills to die without hearings.
I urge all Catholics, Pro-Lifers and others, to contact their legislators — not the ones listed above, but those who might oppose this change — remind them that a good law such as this will make for a more tranquil, less strife-filled society, and encourage them to get behind this effort.
Tony Sacco is the author of The China Connection and Little Sister Lost. A private investigator specializing in locating missing persons and asset recovery, Tony holds a B.S. degree in Political Science from Loyola College and a Juris Doctor degree from the University of Maryland. His columns appear in the Wyoming Catholic Register and WREN Magazine.