Kansas Supreme Court Rules on Scott Roeder’s Appeal
By Dave Leach
The 42nd Anniversary of Roe v. Wade became Scott Roeder’s deadline for appealing to the U.S. Supreme Court, when the Kansas Supreme Court ruled against him 90 days earlier on October 24. Roeder shot the late term abortionist George Tiller May 31, 2009. He submitted his appeal brief to the Ellsworth Correctional Facility mail room January 19.
Roeder’s brief asks, “Has the fact that all unborn babies are humans/persons been sufficiently established by juries, expert witnesses, state legislatures, and Congress to invoke Roe’s ruling that state legislatures and courts should now protect their 14th Amendment rights?”
The question is based partly on a sentence in Roe v. Wade well known to prolifers and especially to the “personhood” movement: “If this suggestion of personhood [of unborn babies] is established, the...case [for legalizing aborticide], of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [14th] Amendment.” Roe v. Wade, 410 US 113, 156. One of five facts the brief induces from this sentence is that “abortion’s legality and aura of ‘constitutional protection’ can continue only...as long as uncertainty is alleged whether the unborn babies of human mothers are humans.”
The brief argues that it is no longer possible for any court to allege any such uncertainty, now that every “category of court-recognized fact finders” has unanimously “established” that the right to life begins at conception, and no American legal authority has ever positively asserted that the right to life begins any later, or that unborn babies are not “humans/persons”.
Especially since 2004, when “the consensus of court-recognized finders of fact [became] unanimous” as Congress joined juries, expert witnesses, and states in affirming that unborn babies of humans are humans/persons. Its law reads: “18 USC §1841(d) ...the term ‘unborn child’ means a child in utero, and the term ‘child in utero’ or ‘child, who is in utero’ means a member of the species homo sapiens, at any stage of development, who is carried in the womb.”
There was only one seriously contested fact in the trial: “not what I did, but who I saved.” If the babies he saved count as “humans/persons”, then the “elements” [requirements] of standard defenses against murder acquit a defendant who could not have saved those lives with any less force.
“No serious question was raised that I saved unborn babies. Tiller’s website had boasted 60,000 victims, while his marketing pointed to thousands more in his career path. Nor was it ever denied that unborn babies of human mothers are humans, but neither was it ever acknowledged. That was the ‘element in the room’.”
Roeder had a jury trial. Juries are called “triers of facts” by every judge. And yet the only seriously contested fact issue of the trial was disposed of by the judge outside the jury’s hearing. So Roeder’s brief asks, “Is the 6th Amendment right to trial by jury satisfied when the only contested issue of the trial is kept secret from the jury and decided by the judge alone?”
Roeder argued, “My action was surgical, taking only the one life which was murdering thousands. My peaceful action now is to find judges who will acknowledge an irrefutable fact. Every court-recognized legal authority agrees with me about whether babies are humans. No authority disagrees. I am not the vigilante.”
The “vigilantes”, Roeder’s brief suggests, are courts below, which accuse the U.S. Supreme Court of saying the opposite of what it said: that it is irrelevant whether abortion is in fact heinous murder, because it is “constitutionally protected” as a matter of law, making it an inappropriate inquiry for Triers of Facts.
“My defense, along with the defense of tens of thousands of abortion preventers before me, is our murder charge against abortion. It is not possible to acquit any of us without convicting abortion. The defense for abortion must prove that we did not save human lives. To say only ‘we cannot tell’ if abortion is murder, is a pretty pathetic defense of abortion. My jury won’t convict me ‘beyond a reasonable doubt’ if I can say I saved 6,000 human beings from being tortured to death and the prosecution concedes ‘well maybe you’re right. We cannot tell.’ ...I did not ‘murder’ anyone. I had no murder mens rea. Since 2004 life saving of the unborn from abortion has been legally recognizable as the prevention of murder.”
Dave Leach, an activist and statehouse candidate, assembled Scott Roeder’s Supreme Court appeal brief and his three previous pro se briefs, with help from legal experts who prefer anonymity.