Public attention to the court's role in abortion is usually focused on the Supreme Court, and the question of whether nominees to the court will uphold Roe vs. Wade, the landmark 1973 decision that legalized abortion. But these days the most important battles over reproductive rights are being fought in state legislatures and, by extension, the district and circuit courts where statutes limiting abortion usually get their final hearings.
With Roe still standing, states aren't allowed to outlaw abortion entirely, but the 1992 Supreme Court decision Planned Parenthood of Southeastern Pennsylvania vs. Casey gave states the power to regulate abortion as long as they don't impose a vaguely defined "undue burden" on women.
Under that rubric, states have enacted hundreds of restrictions on both abortion providers and abortion seekers, including laws requiring minors to get parental consent, mandating waiting periods, extending doctors' liability and imposing onerous regulations on abortion clinics. Since the Supreme Court rarely accepts abortion cases -- it's only heard two in the last 10 years -- it's the circuit courts that are left to decide what an undue burden is.
Bush's 22 pending circuit court nominees can be expected to construe "undue burden" very narrowly, advocates say. Several aren't just antiabortion -- they're bona-fide pro-life activists, and they'll have enormous power to impose their views.
The dozen circuit courts of appeal are the second-highest courts in America. Each covers a multi-state region, and together they hear far more cases than the Supreme Court -- last term, the Supreme Court heard about 90 cases, the circuit courts 57,422. According to NARAL, if all of Bush's circuit court nominees are confirmed, by the end of the year 10 of the 12 courts will have antiabortion majorities, up from seven right now. "Day in and day out, the lower courts are the courts of last resort for most litigants," says Betsy Cavendish, legal director of the National Abortion Rights Action League.
For anyone seeking to protect abortion rights, the idea of Owen as a last resort is grim. She was described by the Houston Chronicle as being "stricter and more conservative than the majority of her all-Republican colleagues" on the Texas Supreme Court. In Texas, Owen had to hear so-called "Jane Doe" cases dealing with that state's parental notification law, which mandated that minors who couldn't go to their parents had to get permission from the court to get an abortion. She voted against Jane Doe in every case but one (in which she was ruling on a clear-cut procedural issue). In a case in which she dissented from the majority recommendation to allow an abortion, her colleagues -- Republicans all -- wrote that opposition to abortion "does not excuse judges who impose their own personal convictions into what must be a strictly legal enquiry."
Her ideology is mirrored by many of Bush's other nominees.
On Monday, the Senate confirmed the nomination of Lavenski Smith to the 8th Circuit. In addition to serving as the executive director of the Arkansas branch of the Rutherford Institute -- the Christian-right group that bankrolled Paula Jones' lawsuit against President Clinton -- Smith was a lawyer for the plaintiff in a case called Unborn Child Amendment Committee vs. Dr. Harry Ward, a suit to try to prevent abortions from being performed in public hospitals, even with private funds. In his failed run for the Arkansas Supreme Court, Smith received donations from a PAC whose sole purpose is to promote antiabortion candidates.
While working in the Colorado attorney general's office, Timothy Tymkovich, nominated to the 10th Circuit, fought a Medicaid statute requiring states to fund abortions for poor women if they were the victim of rape or incest. He lost in both the district court and the Court of Appeals, and his appeal to the Supreme Court was turned down. He also testified against the Medicaid statute before a Senate Governmental Affairs Committee.
Carolyn Kuhl, nominee for the 9th Circuit, wrote what a colleague described as an "aggressive" memo urging the Supreme Court to reverse Roe during her tenure in the Reagan administration Justice Department. As a private attorney, she filed a brief in the Rust vs. Sullivan case in support of the so-called "gag rule," a regulation that prohibits health workers who work at family planning clinics that get government funds from even mentioning abortion to their patients.
Even 10th Circuit nominee Michael McConnell, whom several law professors describe as among the most moderate of Bush's picks, signed a "statement of pro-life principle and concern" in 1996, calling for a constitutional amendment banning all abortions and saying, "Abortion kills 1.5 million innocent human beings in America every year. There is no longer any serious scientific dispute that the unborn child is a human creature who dies violently in the act of abortion ... Abortion kills: few would now deny that."
That statement outlined the antiabortion strategy of chipping away at abortion rights while waiting for Roe vs. Wade to be overturned. "In its 1992 Casey decision, the Supreme Court agreed that the state of Pennsylvania could regulate the abortion industry in a number of ways," the statement says. "These regulations do not afford any direct legal protection to the unborn child. Yet experience has shown that such regulations -- genuine informed consent, waiting periods, parental notification -- reduce abortions in a locality, especially when coupled with positive efforts to promote alternatives to abortion and service to women in crisis. A national effort to enact Pennsylvania-type regulations in all fifty states would be a modest but important step toward the America we seek."
Such rhetoric alarms abortion-rights activists because, if confirmed, McConnell and the other judges will be ruling on precisely such regulations, which in some states are already making it extremely difficult in a practical sense for women looking to end their pregnancies.
Next page: Not one pro-choice judge since Bush renominated a Clinton choice, Roger Gregory