Register Sunday | June 16 | 2019

The End of American Abortions

Will the Terri Schiavo Case Overturn Roe v. Wade?

"A society," said Republican congressman James Sensenbrenner Jr. last month, "is judged by how it treats its least vulnerable citizens." Although he probably misspoke, this was by far the most accurate sound bite to emerge from the cacophony surrounding the Terri Schiavo affair. The GOP-sponsored bill that allowed a federal court to decide the ailing woman's fate was swiftly passed by the Republican-controlled Senate, approved by a solidly Republican House of Representatives and signed by a Republican president. So consolidated is the GOP's power that the "least vulnerable citizens" to whom Representative Sensenbrenner referred could easily have been the Republicans themselves.

Society, for its part, treated these seemingly unassailable figures with rapt, if cynical, attentiveness. A CBS News poll released on March 23 found that 74 percent of Americans believed the circus in Washington over Terri Schiavo and her feeding tube was solely about politics. They're probably right. Some politicians may indeed have been fighting because of their beliefs, but the political payoffs were too great to be ignored. As House Majority Leader Tom DeLay practically admitted, Terri Schiavo was in the right place at the right time.

What hasn't yet been agreed upon, though, is what those payoffs might be. Maureen Dowd claims it was a power grab for the conservative movement, while Frank Rich says it was about pandering to an increasingly religious culture. BlogsforTerri, on the other hand, can put you in touch with countless denizens of the blogosphere who believe that these political manoeuvres were in the service of Truth.

Yet these are all very shortsighted ambitions for a party that has patiently built a monopoly of power for the last forty years. Contrary to liberal rhetoric, conservatives are intelligent people. They knew that their intervention would not improve Schiavo's chances. The Eleventh Circuit, particularly the district court in Tampa, has a healthy number of liberal appointees, and even conservative judges don't look kindly on legislators in jurists' clothing. The whole exercise was rather pointless. So why bother?

Underneath the rhetorical chaff, there are signs that the GOP is hunting bigger game. The Schiavo issue-and the media hootenanny that accompanied it-plays a specific role within the greater conservative movement in America. If you look closely at the Republicans' actions, the outlines of a broader plan emerge, one that would eventually enshrine a constitutional right to life. This is the beginning of an attack on abortion rights in America.

Compared to this goal, what we've just witnessed on Fox News, MSNBC, CNN and the Senate floor is nothing but flash and distraction. The GOP's performance was only the public-consumption side of the "culture of life" debate. The real issue here is the legalculture of life.


GOP lawmakers have been making noise about "activist judges" for years, but their speechifying has taken on a dire tone since the election of George W. Bush. There are countless examples of this, from statements made to reporters to speeches in Congress to presidential remarks. Even the Attorney General has gotten into the act: in 2004, John Ashcroft implied that judges were helping America's enemies: "Intrusive judicial oversight and second-guessing of presidential determinations in these critical areas [treatment of POWs] can put at risk the very security of our nation in a time of war."

The most recent-and most atrocious-example of the GOP demonizing judges came just last week. On April 7 and 8, the Judeo-Christian Council for Constitutional Restoration hosted Confronting the Judicial War on Faith, a two-day conference in Washington, DC, billed as "the beginning of a broad-based effort to save America from the judges." Speakers included Phyllis Schlafly (of course), David C. Gibbs (the attorney for Schiavo's parents), Ray Flynn (formerly a mayor of Boston and an ambassador to the Vatican) and-before he was called away to Pope John Paul II's funeral-none other than Tom DeLay. The involvement of DeLay, one of the most powerful lawmakers in the country, lent significant political heft to this conference, which was aimed at finding "remedies to judicial tyranny."

Another high-ranking Republican, Pennsylvania senator Rick Santorum, claims that the press just doesn't know "how serious this conflict is between the branches of government." Never fear, though-the Republicans have every intention of curing them-and us-of our ignorance. Senator John Cornyn, a former state judge, tells us that judges should expect to have their work reviewed, especially when "they decide cases in a way that reflects more of an ideology or political agenda." He even suggested that recent attacks on judges were related to judges' so-called ideological rulings. Meanwhile, the legal community has practically conceded the field. The New York Times reported last week that Robert Grey Jr., the president of the American Bar Association, recently sent an email to the members of his organization saying that more needs to be done about the decrease in respect for the courts.

All this fearmongering has been successful. To citizens more rightwardly inclined, the judicial system seems completely out of touch with everyday American values: gay marriage is in in Massachusetts, while the Ten Commandments are out in Alabama-to say nothing of school prayer, "one nation under God" and due process for enemy combatants. For all the offensive talk of judicial activism, you'd think that Sandra Day O'Connor and David Souter had been caught tossing Molotov cocktails at the IMF building.

The bottom line is that while the branches of government may be separate, they are also intertwined. Congress does have the power to screw with the judiciary. And the courts do have the power to screw with Congress. The GOP's methods for reshaping the judiciary in its own image are as messy as they are controversial. Impeaching judges, rewriting Senate rules and appointing conservative ideologues are all tactics that need to be legitimized in the court of public opinion. And the Republicans are already well on their way.


The publicity for Confronting the Judicial War on Faith makes clear the next step in the conservatives' plan. Pastor Rick Scarborough, the conference's organizer, described the gathering thusly: "Our purpose is to draw up a plan of action to oppose the liberal judges who are abrogating our most precious human rights-including the right to life. Out of it will come a coalition of family groups, ministries and churches dedicated to reversing the tide of the past forty years."

In other words, this convention was not about discussing the moral high ground, but about taking it. Conservatives know that the legislature alone cannot reverse the tide. For help, lawmakers will have to rely on judges at both the state and federal levels. In March, the Senate Judiciary Committee voted along party lines to recommend William Myers III for a seat on the Court of Appeals for the Ninth Circuit-seven Western and mountain states with a disproportionate share of the nation's natural resources. Myers once likened federal management of public lands to "the tyrannical actions of King George in levying taxes" on the thirteen colonies. Charles Pickering Sr., a former Bush nominee to the Fifth Circuit who has since retired, was widely known for his pro-life position and has referred to America post-Roe v. Wade as providing "abortion on call." And Priscilla Owen, whom Bush has twice renominated to the same circuit, once ruled so narrowly on a case concerning parental notification before an abortion that even Alberto Gonzales called it "an unconscionable act of judicial activism." Ouch.

Not to be outdone, William Pryor, Bush's nominee to the Eleventh Circuit, argued before the Supreme Court in Lawrence v. Texas that, "contrary to the cliché so tritely tossed about in freshman poli-sci courses, the States can and must legislate morality." He has also said that the Roe v. Wadedecision "ripped the Constitution and ripped out the life of millions of unborn babies."

These are the kinds of judges who, as President Bush is fond of saying, "err on the side of life." After both Pickering and Pryor's nominations were blocked by Democratic filibusters, the president gave the two men recess appointments, allowing him to bypass the need for Congressional approval. Infuriated Democrats brokered a deal allowing votes on twenty-five nominees to go forward in exchange for a promise that Bush would not make any additional recess appointments for the remaining six months of his first term.

Now that his second term weighs heavily on our shoulders, is there any way to stop the rampant appointment of conservative judges? With their new 55-45 majority in the Senate, Republicans are even mounting a war against the Democrats' last remaining weapon: the filibuster (read reciting recipes for chocolate Bundt cake on the Senate floor). Using an arcane parliamentary manoeuvre dubbed the "nuclear option" by its opponents, the GOP would seek to have the filibuster declared unconstitutional under Senate rules. To do so, the presiding officer of the Senate-a man who moonlights as Vice-President Dick Cheney-would be asked to rule on a request declaring that "any further debate is dilatory and not in order"; a simple majority is all that is required to uphold such a ruling. Once the Senate procedures have been changed, Republicans would need only fifty-one votes to assure the president's ideologues their judgeships, instead of the sixty votes required to break a filibuster.

Democrats swear that using this option would kill any prospect of future co-operation. But with the filibuster gone, a GOP majority in the Senate, a rabidly Republican House and you-know-who sitting at the other end of Pennsylvania Avenue, who cares? At this point, watching the Democrats complain is kind of like watching Liechtenstein demand a seat on the UN Security Council.

So the public is being convinced that judges are out of control, and Democrats are close to being stripped of their ability to block controversial Republican nominees. This Congress has more than forty federal judgeships to fill-and it is these judges who, if all goes according to plan, will decide the rulings that will bring Roe v. Wade back before the Supreme Court.


According to conservatives, Roe v. Wade-the landmark ruling that gave American women the right to an abortion-came out of thin air and was based on a constitutional right to privacy invented by pro-choice activists. But over the years, the Roe v. Wade decision has become so entrenched in jurisprudence that striking it down would require not only a more conservative judiciary, but also a body of case law on which a challenge could be built and brought before the high court.

While this third and final step of the conservatives' plan is just getting underway, the legal wrangling over Terri Schiavo's feeding tube offers some disturbing evidence of how they will make the law pro-life once again. Despite endless coverage, the media barely mentioned that the legislation that allowed Schiavo's parents to bring their case before a federal court was actually a compromise. The original bill, tabled in the House of Representatives four days earlier, was HR 1332, also known as the Protection of Incapacitated Persons Act of 2005.

HR 1332 would have allowed cases involving the "provision, withholding, or withdrawal" of food or medical treatment to be considered de novo in federal court provided no living will existed. It would also have restricted judges to considering only whether state courts had deprived the individual of any federal constitutional protections.

Imagine that the House bill had passed. As cases involving the new law made their way through the judicial system, a precedent for claims to a "right to life" in the US Constitution would have slowly been established. It's no coincidence that the definition of "incapacitated person" in HR 1332 was strikingly similar to the description of unborn children used by those advocating a ban on abortion. Once precedent for protecting the incapacitated had been established, it's not hard to imagine a more conservative judiciary ruling in favour of extending those rights to the unborn.

Legislation like HR 1332 will continue to appear in Congress over the next few years; Senator Rick Santorum has already promised to draft legislation that would guard against other Schiavo-like situations. The legal person of those dependent upon feeding tubes would then be constitutionally protected. Just how far is it from a feeding tube to an umbilical cord?


At the moment, the mood in the United States doesn't seem ripe for a pro-life revolution: in a November 2004 poll, 59 percent of Americans said nominees to the Supreme Court should uphold a woman's right to choose; only 31 percent favoured a nominee who would overturn the decision. Yet the same poll found that six in ten respondents supported mandatory retirement ages for Supreme Court justices, suggesting a majority of Americans do believe that the judges should be accountable to the dictates of the population they serve.

This is why the Schiavo case was a perfect opportunity for the GOP to advance its plan. From the beginning, supporters of Congressional intervention framed the debate as the will of the majority pitted against the dictates of unrepresentative judges. The president himself upped the ante-after signing the Schiavo legislation, he remarked that the executive and the legislature had done their jobs, "and now we'll watch the courts make their decisions."

Tom DeLay swore that "Terri Schiavo will not be forsaken," that this "act of barbarism" demonstrates a moral obligation to protect and defend the innocent. He described opposition by Senate Democrats as a "profile in cowardice," presumably how he would categorize anyone on the other side of the argument. DeLay even accused the state judge who handled the case of "trying to kill Terri for four and a half years." Apparently, our black-robed masters are murderers, depriving innocents of the due process that Congress and the president are desperately trying to protect.

This is how the GOP wants Americans to see the media spectacle surrounding the Schiavo case. If you do, it makes the whole thing seem less like a two-bit sideshow and more like the greatest show on Earth. Perhaps it was about morals. Perhaps Congress did want to step in regardless of the political payoffs. The case presented the GOP with the perfect opportunity to make their anti-choice agenda more palatable to a suspicious public. Emotional home videos, pleading parents and a pyjama-clad President make for a more compelling story than grassroots conservatives plotting a takeover of the judicial system from the Washington Marriott.

And if, in a decade or so, nine black-robed justices decide that fetuses have constitutionally protected rights, it won't be because they're activists. They'll just have come to their senses. And they'll have the law to back them up. Stay tuned.