LETTER: Attorneys: ‘Measure 1 prevents, not creates, future litigation’
We, the undersigned lawyers, feel we must respond to former Judge Jim Vukelic’s accusation that former U.S. Attorney General John Ashcroft misled North Dakotans about Measure 1 by not acknowledging that, unlike Measure 1, the Missouri law is a statute that applies only to unborn life (“Yes, Measure 1 could affect IVF, end-of-life care,” Viewpoint, Page A4, Oct. 27).
Ashcroft is one of the most distinguished and knowledgeable lawyers in our nation. He knows the difference between a constitutional amendment and a statute. He also knows how to properly read a constitutional amendment.
If Vukelic had witnessed all of the former attorney general’s talks, he would have heard Ashcroft explain that the fact Measure 1 is a constitutional measure makes it less likely to impact in-vitro fertilization or ectopic pregnancies than the statute in Missouri.
Constitutional measures like Measure 1 are statements of general objectives and guides for interpretation. They are not specific enough to create liabilities or crimes. That is what statutes are for.
As John Ashcroft put it: “[Measure 1] is not a law that could provide the basis for prosecution.”
Vukelic also ignored that Arkansas has a constitutional provision almost identical to Measure 1. It has not impacted IVF, banned abortion or prevented treatment of pregnancy complications. Why? In part, because, using the same language the North Dakota Supreme Court uses, the Arkansas Supreme Court found that the amendment was not self-executing.
It is true that Missouri’s and Arkansas’ laws extend only to unborn life, but Vukelic misses the point. Measure 1 will not impact end-of-life care for the same reason Missouri’s and Arkansas’ laws do not affect IVF — general principles are not self-executing. Vukelic even admits that “protect” is not defined and that defining it would be left to the Legislature. By definition, therefore, it can’t be self-executing.
In the end, Measure 1 prevents, not creates, future litigation. It would establish that the state constitution does not have a right to abortion. If that is not established, the abortion lobby will continue to use the courts to try to strike down every statute, rule, regulation and policy that even remotely impacts abortion.
John R. (Jack) Kennelly
The writers are attorneys in North Dakota — Kennelly and Grande in Fargo, Votava and Dodson in Bismarck, Rodenbiker in Watford City, Fischer and Shaft in Grand Forks, Norrell in Mandan and Burianek in Grafton.