News & Politics

Justice Department Goes After Abortion Rights

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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.