From Rehnquist to Roberts: President Bush Takes the ‘Big Easy’ Way Out
By Bonnie Chernin Rogoff (09/10/05)
From the start of his tenure on the Supreme Court in 1972, Chief Justice William Rehnquist understood the critical difference between legislating and interpreting laws from the bench. His rulings have reflected his commitment to protecting the lives of the unborn. He was one of the dissenting votes in the Roe v. Wade ruling, and consistently ruled in favor of reasonable limitations on abortion, including parental consent laws and a ban on partial birth abortion.
The Rehnquist Court presided over many controversial rulings regarding abortion, with some success. The 1989 Webster v. Reproductive Health Services ruling upheld a state law that barred the use of public facilities and employees from performing abortions and required doctors to test for fetal viability after 20 weeks. One year later, in Hodgson v. Minnesota and Ohio v. Akron Center for Reproductive Health, the Court ruled that a state may require parental notification when a minor seeks an abortion. However, a judicial bypass remained intact allowing teenagers to obtain abortions in secret.
The Court reaffirmed Roe in the Planned Parenthood v. Casey decision of 1992, while allowing important restrictions in the Pennsylvania law to stand, including informed consent regarding abortion risks and alternatives, a 24-hour waiting period, parental consent for minors, and state reporting requirements for each abortion performed. In Stenberg v. Carhart in June 2000, the Rehnquist Court failed to ban the gruesome late-term partial birth abortion.
Although Chief Justice William Rehnquist and two other Justices believed Roe was wrongly decided, there were no major pro-life triumphs. Indeed, Norma McCorvey (the ‘Jane Roe’ of Roe v. Wade) sought to reverse the 1973 ruling claiming her lawyers deceived her. On February 22, 2005, the High Court rejected Norma McCorvey’s challenge to Roe v. Wade, without comment.
It was during Chief Justice Rehnquist’s term that RICO and FACE laws were used to cripple peaceful pro-life protesters by limiting their Constitutional rights to protected speech, and “bubble-zones” were put in place.
State parental consent laws are frequently violated when slick operators transport minors over state lines to obtain abortions. Most abortion mills don’t report statutory rape. Liberal governors veto bills that would regulate abortion mills and make them safer. Unscrupulous abortionists often stay in business for years, and their medical licenses are not revoked even after they’ve injured women. What good are restrictions when abortions are so dangerous and the laws are not enforced?
Has significant progress been made to protect unborn babies and their mothers during Chief Justice Rehnquist’s years on the Court? The painful but truthful answer is, probably not.
Republican presidents do not choose judicial nominees wisely when it comes to abortion, and another David Souter or Sandra Day O’Connor with a liberal ideology would be a major setback for the pro-life movement. The death of Chief Justice Rehnquist gave President Bush the opportunity to elevate either Justice Antonin Scalia or Clarence Thomas to fill that position, and their rulings on abortion are known. The choice of Judge John G. Roberts poses a risk. He has the desirable conservative credentials, but that does not forecast how his future rulings on abortion will be. Former presidents have frequently gone outside the Court to select candidates for the Chief Justice position. President Bush is taking the “big easy” way out because of the bad publicity he’s receiving regarding the devastation left in Hurricane Katrina’s wake.
Senate Republicans also wimp out; they are not willing to confront their Democratic colleagues on the Judiciary Committee. They fear a backlash from their liberal Republican colleagues, and rather than uniting to defend a nominee’s pro-life credentials, conservatives back away from the issue. They lack the “fire in the belly,” necessary to ensure success. This contagious weakness among conservatives has empowered Democrats like Senators Charles Schumer and Ted Kennedy to continue their verbal assaults and filibusters against President Bush’s appellate court nominees. Now, they are maintaining that line of attack against Judge John G. Roberts.
When former President Clinton nominated Judge Ruth Bader Ginsburg to replace the retiring Justice Byron White, she had already served as General Counsel and on the National Board of Directors of the ACLU, and helped launch their Women’s Rights Project. In the pro-life community a red warning flag went up, but her background didn’t seem to bother the GOP. There was no talk of filibusters, no demands for the full disclosure of writings or published legal briefs or grilling for her specific views on issues. During her confirmation hearings, Justice Ginsburg refused to answer over 30 questions on topics ranging from anti-trust laws to gun control, and homosexual marriage to school vouchers. She was confirmed without a hitch, and the final vote was 97-3. The same can’t be said for Judge Robert Bork or Justice ClarenceThomas.
At the time, Senator Joseph Biden was Chairman of the Senate Judiciary Committee and he said: “The public is best served by questions that initiate a dialogue with the nominee, not about how she will decide any specific case that may come before her, but about the spirit and the method she will bring to the task of judging.” That same rule should be applied to Judge Roberts during his confirmation process, and he should allude to the former Senator Biden’s comments for clarification. Pro-life views are held to a different standard than almost all other views, and a nominee’s personal opinion is not exempt from scrutiny. It is unfair, and the Republicans have allowed this situation to continue. For the upcoming hearings, the nuclear option must be dredged out of the mud.
As much as I respected Chief Justice Rehnquist, I have little respect for the political process. No matter who ends up on the High Court, it may take a long time before Roe v. Wade can be reversed. However, there is hope. Crisis pregnancy centers are springing up in every state offering alternatives to abortion, and assisting young, pregnant women with financial aid, food and baby clothes. Despite efforts by Planned Parenthood and their pro-abortion legislators to close these centers down, they are thriving and making a big dent in abortion business profits. That’s a good thing, and it’s the job of pro-life organizations to promote and support these life-affirming centers.
Copyright 2005 by Bonnie Chernin Rogoff. All rights reserved.
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