The Justice Department is facing an internal protest over the Bush Administration’s aggressive effort to persuade the Supreme Court to reverse its rulings legalizing abortion, according to department sources.
Several dozen attorneys have signed petitions circulating within the department in the last week criticizing the Administration’s attempt to turn a relatively narrow abortion appeal from Missouri into an all-out attack on the high court’s 1973 Roe vs. Wade ruling.
Last month, the department blamed the court’s once-solid pro-choice majority for “the deep divisions in American society” over the abortion issue. Its brief called the Roe decision “flawed” and “unworkable” and urged that it be overturned.
Court Grants Request
Last week, the Supreme Court granted the department’s request to have its solicitor general participate in the April 26 oral argument in the Missouri case to press for the reversal of the Roe decision.
At least 50 government lawyers have signed protest petitions, and more signatures will be sought this week, said one government source. “We believe that every woman has the right to make her own decision about whether or not to continue her pregnancy,” the petition states.
Some of the protesting attorneys also say it is unseemly for top department lawyers to essentially ignore the issues presented by the Missouri case in order to seek a more sweeping ruling on abortion.
The Missouri law in question forbids the use of public funds or public employees for “encouraging” or “assisting” abortions. An appellate court struck down the law last year as an unconstitutional attempt to infringe on a woman’s right to an abortion.
But even if the justices were to reverse a lower court ruling and reinstate the law, they need not tamper with the underlying Roe doctrine giving a woman the right to choose abortion. More than 95% of the abortions in Missouri take place in private clinics and are unaffected by the state law, according to lawyers on both sides of the case.
David Runkel, Atty. Gen. Dick Thornburgh’s chief spokesman, said the attorney general is aware of the protest and has reacted “with a shrug of his shoulders.”
Thornburgh “recognizes that everybody has their right to free speech. He understands this is a particularly divisive issue, and that there are a lot of strong views on this,” Runkel said. “If they are seeking a change in the (government’s) position on this, that’s not going to happen,” he added.
During the presidential campaign, President Bush said repeatedly he opposed abortion. And Thornburgh, who was first appointed by former President Ronald Reagan and retained by Bush, has been known as a strong foe of the Roe ruling since his days as governor of Pennsylvania.
As soon as Missouri Atty. Gen. William L. Webster decided to challenge the appellate court decision, U.S. Justice Department officials sought to raise the stakes. Outgoing U.S. Assistant Atty. Gen. William Bradford Reynolds contacted Webster last fall and persuaded him to add a line to his initial appeal to the high court suggesting the case could be used as a basis to “reconsider” the Roe ruling.
Officially Urge Appeal
Two days after Bush was elected, the Justice Department announced it would officially urge the court to hear the Missouri appeal. That was followed by the Feb. 23 brief urging that the Missouri case be used as the basis for entirely overruling the Roe decision.
Even without the Justice Department’s active involvement, the Missouri appeal (Webster vs. Reproductive Health Services, 88-605) would have drawn intense interest because of the high court’s changed makeup. In 1986, when the Roe doctrine was last affirmed, it came on a 5-4 vote. Since then, one pro-choice member, Justice Lewis F. Powell Jr., retired and was replaced by Reagan’s third appointee, Justice Anthony M. Kennedy.
The switch created speculation that the court was at least ready to alter its firm pro-choice stand, and possibly, overturn the Roe ruling.