How Ashcroft Could Make an End Run Around Roe v. Wade
Reading Between the Lines
by Sharon Lerner
I
n his first few days as president, George W. Bush has dispensed with themoderate 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.
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?
