For example, many states have passed "Targeted Regulations of Abortion Providers," or TRAP laws, which impose impossibly detailed rules on abortion clinics, right down to the temperature the air conditioner must be set to. Dr. Mary E. Smith, the only abortion provider in Texas north of Dallas, operated for years undaunted by antiabortion harassment. Her home address, drivers license and the names and ages of her family members was published on the Nuremberg Files Web site, which advocates violence against abortion doctors. But Texas' TRAP laws finally made it financially impossible for her to continue providing abortions.
Nor are TRAP laws the only statutes threatening abortion access. Oklahoma is expected to appeal a district court decision that a law mandating parental consent was unconstitutional because it lacked provisions for judicial bypass and medical emergencies; the case would be heard by the 10th Circuit, to which Bush has nominated two strongly antiabortion judges.
The 7th Circuit is hearing a case called A Woman's Choice vs. Newman, which challenges an Indiana law requiring women to get information about abortion's risks, alternatives to the procedure and the size and viability of her fetus in a face-to-face meeting with a medical professional 18 hours before an abortion. Right now, women receive the information over the phone. According to Janet Crepps, staff attorney at the Center for Reproductive Law and Policy, for women who have to travel a long way to find a doctor who performs abortions, being forced to make two trips or stay overnight could be prohibitive.
"The district judge in that case found that the two-trip requirement would probably result in 10 percent of women being unable to obtain abortions," Crepps says. "For abused women, it's hard enough to get away once." Crepps doesn't know whether the 7th Circuit will uphold the Indiana law or not. "If you look at the court as a whole, it's fairly balanced between the more conservative judges and judges who may be willing to extend a fair amount of protection to abortion rights," she says. "In a circuit like that, one or two judges could make a huge difference."
Of course, whenever Democrats object to potential judges because of their views on abortion rights, Republicans call it a litmus test. "Personal views should be left at the courthouse door," says John Nowacki, director of legal policy at the D.C.-based Free Congress Foundation, a conservative group that's been a loud voice in favor of Owen. "When you get into this sort of ideological litmus test, it compromises judicial independence and hurts the idea of a fair judiciary. One of the biggest problems with the confirmation process right now is using this sort of a test. It's an excuse to openly politicize the process, and that can only hurt it."
The problem is that Democrats aren't the only ones with an abortion litmus test. Bush's conservative base expects him to pass over pro-abortion-rights candidates, and he seems to have made it a pivotal -- if not the pivotal -- issue in his selections. "We know that Clinton had a litmus test on that issue," says Schlafly. "We've got a new administration now, and I think we're entitled to go the other way."
And they have. "If there's anyone who's not hostile [to abortion rights], you'd have to wonder how the person snuck through," says Michael Gerhardt, a William and Mary School of Law professor who authored a book about the federal appointments process. "Hostility itself is an expectation, maybe even a condition."
In fact, Bush included a few moderates in his initial picks, renominating two circuit judges picked by Clinton, Barrington Parker and Roger Gregory, both of whom have since been confirmed. While Parker has issued rulings that anger abortion-rights activists, including a ruling that "the government may make a value judgment that supports childbirth over abortion," Gregory is considered pro-choice.
But since Gregory, not a single one of Bush's circuit court nominees have been supporters of abortion rights (at least not openly so). In fact, they've overwhelmingly come from the far right of the Republican Party.
"There is no question that George W.'s nominees are more uniform in their approach than either his father's or Clinton's," says Gerhardt. "There are a number of Reagan and George H.W. veterans who take a position that George H.W. Bush in particular did not do a good enough job in vetting ideology." Bush the son, he says, is correcting his father's moderation.
And since opposition to abortion has played a major role in getting these judges nominated, abortion-rights advocates say Democrats can't very well ignore the issue. After all, it's not simply that Bush is choosing judges who share his strict, literal interpretations of constitutional freedoms and who happen to be antiabortion. In some cases, their opposition to abortion is their qualification. While McConnell has a reputation for judicial restraint and scholarly brilliance, some of Bush's other picks are professional nonentities or judicial activists who tend to use the bench to override laws they disagree with -- exactly what Bush has said judges shouldn't do.
Lavenski Smith is obscure among his colleagues; he hasn't published a single book or article. During his hearing, he was criticized for failing to cite a well-known precedent that contravened the argument he made in his Unborn Child Amendment Committee case. The American Bar Association code of conduct requires lawyers to cite relevant legal authority; failing to do so might suggest a disregard for precedent.
Priscilla Owen also has a history of putting her beliefs before legal exactitude -- in one parental bypass case, Al Gonzales, her Republican colleague on the bench, called her position an "unconscionable act of judicial activism." Now White House counsel, Gonzales is responsible for promoting Owen's confirmation.
Unlike McConnell, Owen has not won the support of anyone except her ideological kin. According to Susan Hayes, a former clerk in the Texas Supreme Court who later represented abortion-seeking minors in front of Owen, "Her nomination really shocked a lot of Texas Supreme Court insiders, because she was not considered the best and the brightest. She has trouble keeping up with her workload. My biggest issue with her is her workload and the clarity of her opinions. Her job as an appellate judge is to make the law clearer for the lower courts. Her opinions are difficult to follow, and she's slow. If the White House is concerned about the backlog in the federal judiciary, she's not a very good pick."
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