Reading Between the Lines

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

In his first few days as president, George W. Bush has dispensed with the moderate stand on abortion that helped get him into office, opening the door to a review of the abortion drug RU-486 and—on the 28th anniversary of Roe v. Wade—reinstating his father's so-called Mexico City policy, which blocks federal funding for overseas family planning organizations that counsel about abortions. Meanwhile, John Ashcroft, his nominee for attorney general, seems poised to make a similarly dramatic transformation.

A fierce opponent of abortion, Ashcroft has been unfailingly polite throughout Judiciary Committee hearings, and patient as the length of his examination was extended to accommodate hundreds of questions from his opponents, including Planned Parenthood, NARAL, and the National Abortion Federation. He has repeatedly assured the senators he knows the difference between enforcing the law and changing it. Roe v. Wade, the 1973 decision affirming a woman's right to abortion, is "settled law," Ashcroft declared, and he promised he would not seek to overturn it.

But another, far more aggressive John Ashcroft emerges from his 25-year record. As attorney general and governor of Missouri, Ashcroft consistently used his office to restrict women's legal right to abortion and birth control. He supported antiabortion legislation of dubious constitutionality, slashed family planning funding, even joined in a case against nurses that would have had them serve prison time for distributing contraceptive devices. He has backed a version of the ban on so-called "partial-birth abortions" that could have put doctors and women in prison as well. Not surprisingly, he has won perfect ratings from the National Right to Life Committee.


"He's misrepresented himself at best, lied at worst."


Ashcroft goes so far as to oppose abortion in cases of rape, a position that seems particularly extreme in light of the news that his wife, Janet, was "attacked by a rapist," as she explained recently on Good Morning America.

Still, some supposedly pro-choice senators—among them Susan Collins of Maine and Robert Byrd of West Virgina—are sufficiently confident that Ashcroft would abandon his previously staunch antiabortion activism to support him. The thinking is that Ashcroft has promised not to overturn Roe, and the deeply religious former senator is a man of his word.

But skeptics are questioning what exactly his word is. "He's misrepresented himself at best, lied at worst," says a frustrated Rosemary Dempsey, director of the Washington office of the Center for Reproductive Law and Policy. "How he testified was in contradiction to his actual behaviors, which in common parlance is lying."

Others cite holes in his carefully worded testimony as evidence he may be planning to restrict and even outlaw abortion. "He said that he did not think it was the Bush agenda to overturn Roe, and he said that it wouldn't be his role to change the Bush administration agenda," says Marcia Greenberger, copresident of the National Women's Law Center. "He didn't say, 'It isn't my agenda.' It wasn't a slip of the tongue; he said it twice in virtually the same way."

When asked about his position on birth control, Ashcroft also gave what on the surface seems a vote of support: "I think individuals who want to plan their families have every right to do so." But Ashcroft's record shows he doesn't think the right to birth control applies when those individuals are teens. He sponsored legislation in Missouri that would have required minors to get parental consent before purchasing contraception from any federally funded programs, even though courts have struck down such stipulations several times.

As a U.S. senator, Ashcroft was one of the architects of an abstinence-only provision in the 1996 Welfare Reform Act, another obstacle between teens and birth control. The abstinence provision set aside almost half a billion dollars in government funds to teach that any sex outside of wedlock—even among adults—is "likely to have harmful psychological and physical effects." Teachers in programs receiving this funding are not allowed to discuss contraception, except to mention its failures, even though surveys show that 89 percent of Americans favor sex education that includes discussion of contraception.

Ashcroft has also opposed the distribution of birth control when recipients include married adults. As Missouri attorney general, he chose to get involved in a case in which family planning nurse practitioners were charged with the unauthorized practice of medicine for providing birth control and other services in clinics that served married and unmarried poor women in rural Missouri. Supporters contend Ashcroft's concern was that nurses were acting too much like doctors, but others involved say the real target was contraception.

"Clearly the main issue was how we were going to get people access to family planning services," says Harry S. Jonas, an obstetrician and gynecologist who signed a brief supporting the nurses in the case. The Missouri supreme court ruled unanimously in favor of the nurses. Had Ashcroft been successful, though, the nurses and the doctors they worked with could have served time in jail just for speaking about birth control.

The difficulty of reconciling Ashcroft's record with his promises is perhaps trickiest in the case of his efforts to declare conception the official beginning of life. Though the debate over when life begins has raged for years, Ashcroft has tried to write his minority opinion into law.

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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