Justice Department Goes After Abortion Rights

Two years ago, when U.S. Attorney General John Ashcroft was sweating through his Senate confirmation hearings, he swore that his personal dislike of abortion wouldn't conflict with the job. "I will obey the rule of law," he intoned, again and again.

But he has a strange way of obeying. In one of many recent attacks on abortion rights, the Department of Justice—which Ashcroft oversees—has filed a "friend of the court" brief (amicus curiae, in lawyers' Latin) in a case involving reproductive freedom currently before the Court of Appeals for the Sixth Circuit. In its brief, the DOJ urged the court to uphold an Ohio law that bans a form of late-term abortion, a/k/a partial-birth abortion.

The DOJ's action is questionable for two reasons. First, the DOJ normally only files such briefs for cases heard on the federal level, or ones that directly affect government institutions. In this case, no federal entity is a party to the Ohio case; no existing or proposed federal laws are implicated; and the Justice Department's brief identifies no federal programs that might be affected. The brief does, however, note that "President Bush has expressed support for . . . legislation" like the Ohio law. Is such "support" enough for the federal government to weigh in? Apparently Attorney General Ashcroft thinks so.

As for obeying the "rule of law," the DOJ doesn't seem fazed by a two-year-old Supreme Court ruling on legislation attempting to ban procedures used in late-term abortions. That case, Stenberg v. Carhart, rejected a Nebraska bill in part because it didn't contain an exception to protect the health of women who suffer complications later in pregnancy. Any new legislation that doesn't contain health exceptions (like the bill being disputed in the Sixth Circuit) is also unconstitutional per the Supreme Court.

Ignoring federal court rulings seems to have become something of a trend these days. Ohio Republican congressman Steve Chabot just reintroduced another so-called partial-birth abortion ban to the House with almost the same wording as the one kicked to the curb in Stenberg v. Carhart—and it passed, 274 to 151. Chabot claims the procedures he wants to outlaw are never necessary to protect women's health; this is precisely the argument already rejected by the Supreme Court. Janet Crepps, an attorney for the Center for Reproductive Law and Policy who's argued many of these cases in state and federal venues, thinks Congress is setting a dangerous precedent. "While it may not be outright illegal for them to approve legislation that's been declared unconstitutional," she says, "it's certainly not good faith for them to defy Supreme Court rulings. In future, is Congress just going to ignore all the laws it doesn't like?"

In another curious turn of events, the Republican National Committee has launched a subpoena blitz against two well-known pro-choice organizations, the National Abortion Rights Action League and Emily's List. As part of RNC's litigation against the Bipartisan Campaign Reform Act (McCain-Feingold), it's demanding more than seven years' worth of documents, including detailed financial records, internal communications, and strategic political documents. NARAL estimates it will have to turn over close to 900,000 documents if forced to fully comply. However, both groups are trying to cooperate with the RNC without giving up the names, addresses, and donation history of supporters. "That information is protected by federal law," says Kate Michaelman, president of NARAL, "and we'll go to court to keep it private if we have to." Both these groups are highly effective at promoting pro-choice political candidates. In fact, just prior to getting subpoenaed by the RNC, NARAL had kicked off a nationwide campaign to block the appointment of several anti-choice judges nominated by President Bush to circuit-level courts—the same courts the DOJ is now papering with amicus curiae.

The Bush administration's commitment to eliminating reproductive freedom hasn't been a shock, since the president made it part of his election platform. What has surprised pro-choice lawyers is how quickly an anti-choice attitude has permeated the legal system. Just last week a Pennsylvania judge slapped an injunction on a 22-year-old woman and kept her from getting an abortion for seven days. The injunction was issued after the woman's abusive ex-boyfriend filed a lawsuit to try and force her to carry to term. The CRLP filed an immediate emergency appeal and fought the injunction all the way to the highest state court, but nothing—not even the numerous Supreme Court rulings already establishing that even the interests of a spouse don't override a woman's personal liberty—would sway the judge. In the end, he lifted the injunction only because the ex-boyfriend couldn't cite a "legal authority" establishing his right to block the abortion. But pro-choice lawyers working various cases throughout the land are beginning to wonder how long it will be before such an "authority" is found.

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