Gregory Roden - Academia.edu (original) (raw)
Papers by Gregory Roden
PubMed, Dec 31, 2022
The Freedom of Access to Clinic Entrances Act of 1994 is no longer a valid exercise of federal ju... more The Freedom of Access to Clinic Entrances Act of 1994 is no longer a valid exercise of federal jurisdiction under the Fourteenth Amendment, in light of Dobbs v. Jackson Women's Health Organization, nor ever was under the Commerce Clause, properly understood, per United States v. Morrison.
Western law has acknowledged the close relationship between patient and physician since the dawn ... more Western law has acknowledged the close relationship between patient and physician since the dawn of recorded history. In the nineteenth century, medical discoveries in the field of embryology exploded the common-law concept of quickening. Consequently, physicians played a key role in the promulgation and implementation of the criminal abortion statutes of the nineteenth century. During that time, physicians also replaced juries of matrons pursuant to a writ de ventre inspiciendo in criminal cases when women were subject to capital punishment. Subsequently, physicians' professional responsibility was vital to the implementation and application of abortion statutes to individual instances. Clearly, the historical advocacy by physicians for children en ventre sa mere has changed the course of American legal history. The doctor-patient relationship between physicians and children en ventre sa mere has been central in the advancement of legal protection for unborn children, which is historically inseparable from the advancements in their medical care. As such, the historical and present advocacy by physicians for said children en ventre sa mere, and their fundamental right to life, strongly supports a finding they have Article III third-party standing in federal abortion controversies.
An Eye for an Unborn Eye?, 2023
In this article it will be argued that the recitation of lex talionis in the Old Testament invoke... more In this article it will be argued that the recitation of lex talionis in the Old Testament invokes an application of the whole of the Mosaic Law into situations where it might not otherwise be known how the law is to be applied-the blaspheming foreigner living among the Children of Israel, the perjurer, and the person causing an unintended injury to a woman and/or her child in the womb. Each use the "eye for eye" formula answers an underlying question presented-how is the law to be applied? And, the answer in each instance may be paraphrased to be, "The whole of the Mosaic Law applies." With regards to a pregnant woman and her child en ventre sa mere, the literal application of lex talionis in Exodus 21:22-25 is mitigated by unintended nature of his assault, notably in conjunction with Numbers 35:31-34. Yet, at the same time, this conversely implies that intended injuries to a woman with child would fall under the literal application of lex talionis to the extent the Mosaic Law would allow.
St. Thomas law review, 2003
Issues in Law & Medicine, 2010
In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' ... more In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." To which Justice Harry Blackmun responded, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." However, Justice Blackmun then came to the conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." In this article, it is argued that unborn children are indeed "persons" within the language and meaning of the Fourteenth and Fifth Amendments. As there is no constitutional text explicitly holding unborn children to be, or not to be, "persons," this argument will be based on the "historical understanding and practice, the structure of the Constitution, and thejurisprudence of [the Supreme] Court." Specifically, it is argued that the Constitution does not confer upon the federal government a specifically enumerated power to grant or deny "personhood" under the Fourteenth Amendment. Rather, the power to recognize or deny unborn children as the holders of rights and duties has been historically exercised by the states. The Roe opinion and other Supreme Court cases implicitly recognize this function of state sovereignty. The states did exercise this power and held unborn children to be persons under the property, tort, and criminal law of the several states at the time Roe was decided. As an effect of the unanimity of the states in holding unborn children to be persons under criminal, tort, and property law, the text of the Equal Protection Clause of the Fourteenth Amendment compels federal protection of unborn persons. Furthermore, to the extent Justice Blackmun examined the substantive law in these disciplines, his findings are clearly erroneous and as a whole amount to judicial error. Moreover, as a matter of procedure, according to the due process standards recognized in Fifth Amendment jurisprudence of the Supreme Court, Roe v. Wade should be held null and void as to the rights and interests of unborn persons.
Capital University Law Review, Jan 30, 2019
St. Thomas law review, 2003
University of West Los Angeles law review, 2003
Issues in law & medicine, 2010
In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the l... more In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." To which Justice Harry Blackmun responded, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." However, Justice Blackmun then came to the conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." In this article, it is argued that unborn children are indeed "persons" within the language and meaning of the Fourteenth and Fifth Amendments. As there is no constitutional text explicitly holding unborn children to be, or not to be, "persons," this argument will be based on the "historical understanding and practice, the structure of the Constitution, and thejurisprudence of [the Supreme] Court." Specific...
Paul Benjamin Linton—in his recent Human Life Review article, "Sacred Cows, Whole Hogs & Gol... more Paul Benjamin Linton—in his recent Human Life Review article, "Sacred Cows, Whole Hogs & Golden Calves" (Summer 2007)—writes about the efficacy of "incrementalism," which, he says, "seeks to reduce the number of (and perceived need for) abortions, while simultaneously chipping away at the foundation of Roe v. Wade until the Supreme Court is prepared to discard whatever remains of Roe."
Issues in law & medicine, 2010
In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the l... more In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." To which Justice Harry Blackmun responded, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." However, Justice Blackmun then came to the conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." In this article, it is argued that unborn children are indeed "persons" within the language and meaning of the Fourteenth and Fifth Amendments. As there is no constitutional text explicitly holding unborn children to be, or not to be, "persons," this argument will be based on the "historical understanding and practice, the structure of the Constitution, and thejurisprudence of [the Supreme] Court." Specific...
St. Thomas law review, 2003
University of West Los Angeles law review, 2003
The Human life review, 2004
St. Thomas law review, 2003
Capital University Law Review, 2015
“[T]he people are the sovereign of this country.” And, although the people delegated many powers... more “[T]he people are the sovereign of this country.” And, although the people delegated many powers to the federal government in the United States Constitution, they retained for themselves “the benefits of Trial by Jury” under Section 2 of Article 3, the Sixth Amendment, and the Seventh Amendment. By these constitutional provisions, not only was the right to a jury trial guaranteed to a defendant/litigant, but also the power to sit on juries and to be the finder-of-fact was reserved to the people. These constitutional guarantees are to be understood “with reference to the meaning affixed to them in the law as it was in this country and in England at the time of the adoption of” the constitution.
At the time of the adoption of the constitution the people retained the power to determine when life began in the womb by means of juries of matrons. A jury of matrons was impaneled pursuant to a writ de ventre inspiciendo in response to a plea of pregnancy made by a condemned woman “to ascertain whether a woman convicted of a capital crime was quick with child… in order to guard against the taking of the life of an unborn child for the crime of the mother.” Thereby, as a matter of legal history, the sovereign people retained under their jury powers the right to be the finder-of-fact if any controversy arose over the existence of life in the womb. And, if as a consequence of this proceeding, the existence of a living child en ventre sa mere was established, the equal protection of the law was brought to bear “to all intents and purposes, for the child’s benefit.”
Although modern statutes have replaced the form of the finders of fact in such situations with physicians, that replacement had already occurred under the common law of one state just two years after the enactment of the Sixth and Seventh Amendments. The fact that the change from juries of matrons to examinations by physicians began under the common law, contemporaneous with the enactment of the Sixth and Seventh Amendments, illustrates that the “substance of the common-law right of trial by jury” was preserved and enhanced in the form of physicians applying the advances of medical science to the task of their examinations.
Drafts by Gregory Roden
Joinder of Americans En Ventre Sa Mere, 2023
This article will illustrate the historical and legal basis for joinder of children en ventre sa ... more This article will illustrate the historical and legal basis for joinder of children en ventre sa mere in any cause injurious to their rights, using as an example the current litigation of Food and Drug Administration v. Alliance for Hippocratic Medicine, 598 U.S.___ (2023). It will be asserted that Americans en ventre sa mere (“Petitioners”), by their Next Friend, could move to join in this cause.
Is The Freedom of Access to Clinic Entrances Act of 1994 still a valid exercise of federal jurisd... more Is The Freedom of Access to Clinic Entrances Act of 1994 still a valid exercise of federal jurisdiction in light of Dobbs v. Jackson Women’s Health Organization?
PubMed, Dec 31, 2022
The Freedom of Access to Clinic Entrances Act of 1994 is no longer a valid exercise of federal ju... more The Freedom of Access to Clinic Entrances Act of 1994 is no longer a valid exercise of federal jurisdiction under the Fourteenth Amendment, in light of Dobbs v. Jackson Women's Health Organization, nor ever was under the Commerce Clause, properly understood, per United States v. Morrison.
Western law has acknowledged the close relationship between patient and physician since the dawn ... more Western law has acknowledged the close relationship between patient and physician since the dawn of recorded history. In the nineteenth century, medical discoveries in the field of embryology exploded the common-law concept of quickening. Consequently, physicians played a key role in the promulgation and implementation of the criminal abortion statutes of the nineteenth century. During that time, physicians also replaced juries of matrons pursuant to a writ de ventre inspiciendo in criminal cases when women were subject to capital punishment. Subsequently, physicians' professional responsibility was vital to the implementation and application of abortion statutes to individual instances. Clearly, the historical advocacy by physicians for children en ventre sa mere has changed the course of American legal history. The doctor-patient relationship between physicians and children en ventre sa mere has been central in the advancement of legal protection for unborn children, which is historically inseparable from the advancements in their medical care. As such, the historical and present advocacy by physicians for said children en ventre sa mere, and their fundamental right to life, strongly supports a finding they have Article III third-party standing in federal abortion controversies.
An Eye for an Unborn Eye?, 2023
In this article it will be argued that the recitation of lex talionis in the Old Testament invoke... more In this article it will be argued that the recitation of lex talionis in the Old Testament invokes an application of the whole of the Mosaic Law into situations where it might not otherwise be known how the law is to be applied-the blaspheming foreigner living among the Children of Israel, the perjurer, and the person causing an unintended injury to a woman and/or her child in the womb. Each use the "eye for eye" formula answers an underlying question presented-how is the law to be applied? And, the answer in each instance may be paraphrased to be, "The whole of the Mosaic Law applies." With regards to a pregnant woman and her child en ventre sa mere, the literal application of lex talionis in Exodus 21:22-25 is mitigated by unintended nature of his assault, notably in conjunction with Numbers 35:31-34. Yet, at the same time, this conversely implies that intended injuries to a woman with child would fall under the literal application of lex talionis to the extent the Mosaic Law would allow.
St. Thomas law review, 2003
Issues in Law & Medicine, 2010
In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' ... more In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." To which Justice Harry Blackmun responded, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." However, Justice Blackmun then came to the conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." In this article, it is argued that unborn children are indeed "persons" within the language and meaning of the Fourteenth and Fifth Amendments. As there is no constitutional text explicitly holding unborn children to be, or not to be, "persons," this argument will be based on the "historical understanding and practice, the structure of the Constitution, and thejurisprudence of [the Supreme] Court." Specifically, it is argued that the Constitution does not confer upon the federal government a specifically enumerated power to grant or deny "personhood" under the Fourteenth Amendment. Rather, the power to recognize or deny unborn children as the holders of rights and duties has been historically exercised by the states. The Roe opinion and other Supreme Court cases implicitly recognize this function of state sovereignty. The states did exercise this power and held unborn children to be persons under the property, tort, and criminal law of the several states at the time Roe was decided. As an effect of the unanimity of the states in holding unborn children to be persons under criminal, tort, and property law, the text of the Equal Protection Clause of the Fourteenth Amendment compels federal protection of unborn persons. Furthermore, to the extent Justice Blackmun examined the substantive law in these disciplines, his findings are clearly erroneous and as a whole amount to judicial error. Moreover, as a matter of procedure, according to the due process standards recognized in Fifth Amendment jurisprudence of the Supreme Court, Roe v. Wade should be held null and void as to the rights and interests of unborn persons.
Capital University Law Review, Jan 30, 2019
St. Thomas law review, 2003
University of West Los Angeles law review, 2003
Issues in law & medicine, 2010
In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the l... more In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." To which Justice Harry Blackmun responded, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." However, Justice Blackmun then came to the conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." In this article, it is argued that unborn children are indeed "persons" within the language and meaning of the Fourteenth and Fifth Amendments. As there is no constitutional text explicitly holding unborn children to be, or not to be, "persons," this argument will be based on the "historical understanding and practice, the structure of the Constitution, and thejurisprudence of [the Supreme] Court." Specific...
Paul Benjamin Linton—in his recent Human Life Review article, "Sacred Cows, Whole Hogs & Gol... more Paul Benjamin Linton—in his recent Human Life Review article, "Sacred Cows, Whole Hogs & Golden Calves" (Summer 2007)—writes about the efficacy of "incrementalism," which, he says, "seeks to reduce the number of (and perceived need for) abortions, while simultaneously chipping away at the foundation of Roe v. Wade until the Supreme Court is prepared to discard whatever remains of Roe."
Issues in law & medicine, 2010
In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the l... more In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." To which Justice Harry Blackmun responded, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." However, Justice Blackmun then came to the conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." In this article, it is argued that unborn children are indeed "persons" within the language and meaning of the Fourteenth and Fifth Amendments. As there is no constitutional text explicitly holding unborn children to be, or not to be, "persons," this argument will be based on the "historical understanding and practice, the structure of the Constitution, and thejurisprudence of [the Supreme] Court." Specific...
St. Thomas law review, 2003
University of West Los Angeles law review, 2003
The Human life review, 2004
St. Thomas law review, 2003
Capital University Law Review, 2015
“[T]he people are the sovereign of this country.” And, although the people delegated many powers... more “[T]he people are the sovereign of this country.” And, although the people delegated many powers to the federal government in the United States Constitution, they retained for themselves “the benefits of Trial by Jury” under Section 2 of Article 3, the Sixth Amendment, and the Seventh Amendment. By these constitutional provisions, not only was the right to a jury trial guaranteed to a defendant/litigant, but also the power to sit on juries and to be the finder-of-fact was reserved to the people. These constitutional guarantees are to be understood “with reference to the meaning affixed to them in the law as it was in this country and in England at the time of the adoption of” the constitution.
At the time of the adoption of the constitution the people retained the power to determine when life began in the womb by means of juries of matrons. A jury of matrons was impaneled pursuant to a writ de ventre inspiciendo in response to a plea of pregnancy made by a condemned woman “to ascertain whether a woman convicted of a capital crime was quick with child… in order to guard against the taking of the life of an unborn child for the crime of the mother.” Thereby, as a matter of legal history, the sovereign people retained under their jury powers the right to be the finder-of-fact if any controversy arose over the existence of life in the womb. And, if as a consequence of this proceeding, the existence of a living child en ventre sa mere was established, the equal protection of the law was brought to bear “to all intents and purposes, for the child’s benefit.”
Although modern statutes have replaced the form of the finders of fact in such situations with physicians, that replacement had already occurred under the common law of one state just two years after the enactment of the Sixth and Seventh Amendments. The fact that the change from juries of matrons to examinations by physicians began under the common law, contemporaneous with the enactment of the Sixth and Seventh Amendments, illustrates that the “substance of the common-law right of trial by jury” was preserved and enhanced in the form of physicians applying the advances of medical science to the task of their examinations.
Joinder of Americans En Ventre Sa Mere, 2023
This article will illustrate the historical and legal basis for joinder of children en ventre sa ... more This article will illustrate the historical and legal basis for joinder of children en ventre sa mere in any cause injurious to their rights, using as an example the current litigation of Food and Drug Administration v. Alliance for Hippocratic Medicine, 598 U.S.___ (2023). It will be asserted that Americans en ventre sa mere (“Petitioners”), by their Next Friend, could move to join in this cause.
Is The Freedom of Access to Clinic Entrances Act of 1994 still a valid exercise of federal jurisd... more Is The Freedom of Access to Clinic Entrances Act of 1994 still a valid exercise of federal jurisdiction in light of Dobbs v. Jackson Women’s Health Organization?
The United States Supreme Court has heard oral arguments in the case Dobbs v. Jackson Women's Hea... more The United States Supreme Court has heard oral arguments in the case Dobbs v. Jackson Women's Health Organization, No. 19-1392 (cert. granted May 17, 2021). During said arguments, by many accounts, the majority of the justices seemed to be showing their cards in favor of a pro-life ruling of some manner. This paper speculates on what pro-life litigation may look like in the future.
As evidenced by common-law criminal indictment forms, the common law regarded the child en ventre... more As evidenced by common-law criminal indictment forms, the common law regarded the child en ventre sa mere "as having a separate existence, a life capable of being destroyed." Although the common law considered life in the womb, for many purposes, as commencing at the moment of conception, because of the potential dire consequences to a defendant at a common-law criminal trial, the standard therein was "when the embryo gives the first physical proof of life, no matter when it first received it." In contrast to the common law, the viability rule adopted by the Supreme Court in Planned Parenthood v. Casey is based on no sound legal, historical, or physiological principle. It is as much "an exercise of raw judicial power" as the trimester criteria Justice Blackmun promulgated in Roe v. Wade.