Reading Between the Lines

How Ashcroft Could Make an End Run Around Roe v. Wade

As Missouri governor, he signed a 1986 bill, later largely struck down by the U.S. Supreme Court, that stated that life begins at the moment of fertilization. As a senator, Ashcroft, along with senators Jesse Helms and Bob Smith, cosponsored legislation that would have added a similar "human life" amendment to the Constitution.

Legally defining life as beginning at conception could outlaw abortion and make both the doctors who perform abortions and the women who seek them "murderers." (Ashcroft even supported a Missouri law, now enjoined, that specified that women who sought certain abortions could be sentenced to life in prison.) Such a human life provision could also ban birth control devices such as the pill, the IUD, Depo-Provera, Norplant, and the "morning-after pill," which all work after fertilization.

Most would think Ashcroft had ruled out such extreme outcomes with his promise not to challenge Roe. Yet Ashcroft has argued that abortion could be outlawed even while the landmark abortion case stands. Indeed, in his testimony supporting a Human Life Bill in 1981, he insisted that the proposed law granting fetuses and embryos the status of people would have been constitutional. He reasoned that, since fetuses are human beings, fetal life is guaranteed under the 14th Amendment, which outlawed slavery by declaring that "never again in the United States would a class of human beings be declared to be 'non-persons.' "

The 1981 bill died in committee before senators had a chance to vote on it, but, to some, his support of it is evidence of the possible paths to obliterating abortion rights without changing the Constitution, striking down laws, or technically even contradicting his moderate testimony. "Clearly in his view he could justify the total gutting of Roe v. Wade and still claim that he wasn't seeking to overturn it," explains Greenberger of the National Women's Law Center.

And that's just one of many attacks on reproductive rights Ashcroft could make if confirmed. The attorney general has the authority to assign government lawyers to cases in support of his views, perhaps arguing to extend existing restrictions on federal funding for abortions to apply to the birth control devices that work after fertilization, or to apply a Mexico City-type gag order in the U.S. The government's top lawyer can ask the Supreme Court to review cases that apply to abortion, including last year's ruling on so-called "partial-birth abortion" bans, in which such laws were struck down by a one-vote margin. He could also influence the choice of judges—including U.S. Supreme Court judges.

These are moves the John Ashcroft of confirmation hearings might disdain—and the John Ashcroft of the past 25 years would likely defend. With a majority of senators apparently ready to support his confirmation, the question is: Which John Ashcroft will dominate American abortion policy?

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