Indiana passes law for disposition of aborted babies; We can do more

The News

Indiana Senate Bill 329 regulates how abortion clinics are to handle the remains of aborted children, as well as discuss options, including cremation and burial, prior to performing an abortion.

The bill is in response to revelations that a Planned Parenthood abortion facility in Indianapolis was—literally—flushing the bodies of aborted children down the drain, Life news reported.

According to the Christian News Network, the bill requires abortion facilities to orally explain what options are available to pregnant women who have abortions—including burial and cremation.

Indiana Governor Mike Pence (R) is quoted by Life News,

“Establishing standards brings respect to the woman, abortion staff and the aborted child. These standards require the facility to dispose of the baby’s remains properly, unless the woman chooses to bury her baby. Hoosiers want their government to ensure the bodies of aborted babies are treated with dignity and this law accomplishes that.”

The Problems

I earnestly hope this is another step towards ending abortion in Indiana. However, I can’t help but be appalled at the duality of our governments. I’m using Indiana as an example, but there are several other states that more or less recognize the humanity of the preborn but yet refuse to take meaningful measures to stop their murder.

Case in point, Indiana is willing to provide “respect” to the bodies of aborted children after they have been killed, but has yet to take the actions needed to outright end the slaughter of Indiana’s children.

Roe Vs. Wade ‘Prohibits’

The aforementioned Life News article, written by Steven Ertelt, underlines rampant misunderstanding of the Constitution, state rights, and what authority the states truly do have over Roe Vs. Wade.

As an aside, don’t misconstrue this as a critique of Mr. Erelt, I’m merely using his article as an example. I have the utmost respect for him and his writing, and appreciate the work he’s doing.

Ertelt explained,

Although Roe v. Wade prohibits states from banning abortions…

The Supreme Court in “Roe Vs. Wade” assumed the power to prohibit state intervention in the practice of abortion, but does the Constitution actually grant that authority? The Supreme Court sure thinks it does, but contrary to popular belief, the Supreme Court’s job isn’t to interpret the Constitution (another assumed power not delegated—don’t believe me? Show me where in the Constitution that power is granted.)

The answer is surprisingly clear. Not the judiciary, not the executive, nor even the legislative branch has any authority to permit the blanket murder of American children.

And yes, before anyone chimes in, preborn children are scientifically, biologically human individuals.

The Fifth Amendment of the United States Constitution is unmistakably clear,

No person shall be… deprived of life, liberty, or property, without due process of law

No such thing as an ‘unconstitutional’ law

In Vol. 5, Issue 25  of the California Law Review, E.I. McCormac writes,

In the first place, any enactment which is not made in pursuance of the Constitution is not a law at all, and is void. In the second place, it is the Constitution itself, and not the judges or anybody else, which makes it void.

I should add at this juncture that McCormac’s conclusions are demonstrably wrong, but this quote stands out as sterling.

The Constitution, as “Supreme law of the land,” can not be usurped or contradicted. Any “law” (or in this case, court decision) which violates the Constitution is inherently unlawful and therefore not a law at all. By determining a federal mandate in breech of the Constitution, that mandate is invalidated by the Constitution. The Constitution does not delegate unlimited authority to any branch of government. The nearest it comes to doing so is with the states in the Tenth Amendment.

This is not a lone opinion, but shared by James Madison in his “Report on the Virginia Resolutions” (emphasis added,)

…Dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated must extend to violations by one delegated authority, as well as by another…

The ultimate “parties” (notice, plural) are the States. The states existed before the Constitution was written, and it is by the authority of the states that the Constitution was enacted.

After having suffered under unchecked British rule, the founders were unwilling to risk yet another runaway government. They were careful to protect the interests and sovereignty of the states. The Constitution—by most accounts—was meant to establish a heavily restrained central government for the benefit of the states and their peoples. The central government—the federal government—was a servant of the states.

The take away: The Supreme Court does not have ultimate authority to interpret the Constitution, especially when the court itself is being accused of violating it. How can the court objectively arbitrate its own power? It can’t. And never was intended to do so.

You may have some more questions. Especially since “nullification” and “state rights” has been erased from the public mind for generations. Steve Palmer answers several important questions people raise about nullification in his article, “Why Nullification? Three Arguments.”

How Nullification Relates to Roe Vs. Wade

As we’ve established already,  “Roe vs. Wade” violates the Fifth Amendment. That automatically makes “Roe Vs. Wade” constitutional, unlawful and void. Regardless of what the Supreme Court (or any other source) says to the contrary, the decision of Roe vs. Wade has no legal authority over the states. The states therefore have the right—and I would argue obligation—to officially declare it as such and resist any attempts by the federal government to impose it on them.

The federal government can sue the states, take them before the Supreme Court, and even have the Supreme Court rule against tthem.  However, without the cooperation of the states, the Supreme Court and federal government are greatly limited in their options.

Do you really think the political clout exists to deploy the military to force a state to allow abortion?  I don’t think so. Congress could punish a state by withholding federal funding, but do you think there are enough supporters in the Senate to break a filibuster or enough support in the House to reach a majority? And, if even if it did, would losing federal bribery to ignore the murder children be an acceptable sacrifice?

Pray tell, how can the Supreme Court force a state allow the killing of its children? They can yell and scream until they’re blue in the face, but without the cooperation of the states they are near powerless to do anything.

It’s that truth that should empower the states.


Indiana (and every state for that matter) has the power to end abortion today. Not tomorrow. Not years or decades from now. Today. We’ve seen the resurgence of the nullification philosphy across the country effectively nullify unconstitutional gun control laws, unconstitutional restrictions on hemp production, and even federal prohibition of marijuana usage. Isn’t it about time the states used this powerful tool to protect the defenseless children of our states?

The question isn’t can the states do it; rather, whether the states are bold enough and resolved enough to stand up for the preborn.

Further Reading

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