Gloucester Daily Times Debate on Abortion (86), January 23, 1989

The Attorney General Fears Multiple-Choice

[The Times titled it: “Can One Block Wishes of Many?”]

This past year, we collected nearly 26,000 validated signatures in 105 Massachusetts Representative Districts, seeking to place a non-binding public policy question on the fall ballot. But on Sept. 2, Attorney General James Shannon blocked the question, and on Oct. 3, the Supreme Judicial Court (SJC) dismissed our call for judicial review. In the SJC’s published opinion of Jan. 4 they said that they have no jurisdictional power to review such matters. Accordingly, Shannon’s opinion was ruled final.

What gives? How can one man block the wishes of so many voters? What realities are at play in our political system that allow the Attorney General to virtually ignore our probing Constitutional arguments in his published opinion and legal brief?

The question was multiple-choice: “In biological terms, when does an individual human life begin?” There were four options: A) Conception; b) Viability; C) Birth; and D0 Write-In: Specify a Different Biological Term.

The question’s purpose was simple: to determine what consensus does or does not exist on this crucial question, in a legally non-binding manner of apprising our legislators. The 1973 U.S. Supreme Court Roe v. Wade decision, which legalized abortion, asserted that there was no consensus on this question, and then tacitly dismissed the possible humanity of the unborn. But that decision explicitly left the door open for such a consensus to be proven in the future.

Roe v. Wade is the only example in American Law I know of that was based on non-consensus, on an “I don’t know” posture. All other law is based upon agreement first on the facts of the case. If a trial jury cannot reach unanimous agreement, then the judge can give no decision. But Roe v. Wade asserted such a “hung jury,” then judged against the unborn. How astonishing!

Thus, our question sought to give the full range of possible positive answers on this issue — and nobody challenged this reality. And it was a clear example of democratically informed choice. If legalized abortion is logically arguable, why should such a democratically pro-choice and positive question be opposed?

But the Attorney General, in his opinion and brief, and Planned Parenthood in their amicus curiae, argued that a negative option must be allowed. I believe that, in the knowledge that there is no evidence to dispute the biology of conception, they knew that abortion advocates could not unite on any positive biological term, and could only unite in negation.

Such an insincere agenda was evidenced on Aug. 17, when an assistant attorney general called me, offering to negotiate a change in the question’s language. The Attorney General’s office has acknowledged this phone call in writing. I was asked  if we were willing to allow one or both of two other options: 1) “I don’t know,” and 2) “No, I do not want to instruct my legislator.” I answered, first, that I have no such authority to change the wishes of 26,000 voters, and second, if I did, I wouldn’t. An “I don’t know” posture is not only unprecedented and the opposite of democratic consensus, but is also the very essence of the Roe v. Wade ruling we were seeking to redress.

In Shannon’s Sept. 2 opinion, he said, 1) it was not a valid public policy question; 2) it was not a proper form of instruction; and 3) multiple choice is not permissible. If so, how does one explain the phone call from the Assistant Attorney General? Why would he suggest two other options if multiple choice is invalid? And why would he include the word “instruct” in one of those options if our question were not a proper form of “instruction?” And why would he make any offer at all if it were truly not a question of public policy? And why would he ask us to consider making any changes at all, when the Sept. 2 opinion said exactly that no such changes can be made after the petitions have been signed?

Did Shannon, who was a member of Planned Parenthood’s board of directors until the time he assumed his present office, act in “bad faith?” The evidence that he did is clear, and as a future publication of mine will examine in detail. But unfortunately, to morally act in “bad faith” is one thing, whereas to prove it in legal terms is near impossible. Therefore, we will seek to work through the Legislature, which placed a non-binding multiple-choice question on the 1970 ballot concerning Vietnam policy.

I draw the following conclusion: abortion advocates steadfastly avoid public discussion of the issue and here, they have opposed democratically informed choice. In “The People v. the Attorney General,” Round One, the will of 26,000 voters has been violated, and Part 1, Article 5 of the State Constitution has been made a mockery of (it is worth reading). In Round Two, the People will work through the Legislature to amend such an egregious political elitism.

John C. Rankin, Executive Director, New England Christian Action Council