Senate Light Will Glare on Ashcroft’s Abortion Views

Under Atty. Gen. Janet Reno, the Justice Department has moved aggressively on several fronts to protect abortion rights.

It has filed briefs urging the Supreme Court to preserve women’s access to abortion services. It has vigorously enforced the Freedom of Access to Clinic Entrances Act of 1994. It formed an interagency task force dedicated to preventing violence at clinics. It has even taken the unprecedented step of assigning federal marshals to provide around-the-clock protection to abortion doctors and clinic workers when their lives appear to be at risk.

Will John Ashcroft do the same? It’s a question that vexes abortion rights advocates and critics of the former Missouri senator chosen by President-elect George W. Bush to succeed Reno as attorney general. And it will be a subject of intense scrutiny in Ashcroft’s confirmation hearings, scheduled to begin today before the Senate Judiciary Committee.

Within the federal government, the Justice Department wields more power than any other agency over abortion issues. Ashcroft, like Reno, will be faced with numerous decisions involving both law and policy, according to former Justice officials and advocates on both sides of the abortion debate.

Ashcroft, an ardent opponent of legal abortions throughout his 38-year political career, has said nothing so far to indicate whether he would continue the discretionary enforcement efforts initiated by Reno. Nor has he indicated what positions he would take on constitutional questions related to abortion rights.

Documents provided by the Bush-Cheney transition team suggest that, despite his ideological inclinations, Ashcroft would enforce the clinic access law and take a strong stand against abortion clinic violence.

“John Ashcroft has always condemned criminal violence at abortion clinics--or anywhere--and believes individuals who commit these acts of violence and intimidation should be punished to the fullest extent of the law,” said Mindy Tucker, a Bush-Cheney spokeswoman. “As attorney general, he will do just that.”

His defenders say he is an absolutely upright man who knows his new job will require him to uphold the law, whatever it may be. “I think John Ashcroft is a very ethical lawyer,” said A.B. Culvahouse, White House counsel under former Presidents Reagan and Bush.

The question, according to abortion rights advocates, is how Ashcroft exercises his discretion.

“Can someone of strong ideological views, someone who has a strong moral opposition to abortion, adequately enforce all of the laws?” said Sen. Charles E. Schumer (D-N.Y.), a Judiciary Committee member who has expressed reservations about Ashcroft’s nomination. “The attorney general has enormous power to make discretionary decisions and judgments on where to spend department resources and how to interpret the laws.”

‘I Was Fearful for My Life’

For Dr. Eric Schaff, a professor of pediatric and adolescent medicine at the University of Rochester Medical School in New York who performs abortions, the Justice Department’s decision to give him federal marshal protection in 1998 after two colleagues in neighboring towns were shot made a critical difference for him and his family. “I was fearful for my life,” said Schaff, who ran some of the clinical tests on the recently approved abortion drug RU-486. After those shootings, in which abortion doctor Barnett Slepian was killed as he stood before an uncurtained window in his home, Schaff drew his curtains for good.

“I haven’t had an unblinded window since then, but the federal marshals, at least they secure your environment,” Schaff said.

Neither Bush nor Ashcroft has made any secret of their interest in reversing the direction taken by the Clinton administration on abortion rights.

Knowledgeable officials and advocates say that Ashcroft, if confirmed, will have the greatest effect in deciding how the Justice Department deals with violence at clinics, what position it takes on abortion cases before the U.S. Supreme Court, and how it handles the selection of judges.

It is up to the attorney general and the assistant attorney general for civil rights to decide, for instance, how many cases to bring under the 1994 federal act and what penalties to seek for those who threaten or commit clinic violence.

The aggressive efforts undertaken during Reno’s tenure were initiated in response to rising waves of anti-abortion violence that became increasingly dangerous and ultimately deadly. Since 1985, there have been seven killings of abortion providers and clinic workers in the United States, 53 clinic bombings and 173 arsons, according to the Bureau of Alcohol, Tobacco and Firearms. In addition, there have been hundreds of incidents of vandalism and scores of attempted arsons and bombings, according to the bureau and the National Abortion Federation, which represents abortion providers.

Since 1994, the Justice Department has won convictions of 56 individuals in 37 criminal cases for violations of the Freedom of Access to Clinic Entrances Act and other federal statutes, according to department records. After Slepian’s killing in 1998, Reno formed the interagency task force to coordinate federal and local law enforcement efforts and to work closely with abortion providers to protect their safety. Slepian’s suspected murderer, James Kopp, is now on the FBI’s 10 Most Wanted list, along with another suspected assailant at an abortion clinic.

“When the law is being enforced to this extent, it becomes a deterrent,” said Vicki Saporta, director of the National Abortion Federation. “The thought that we would have an attorney general who wouldn’t enforce the law to the same degree . . . is more disturbing than I can say.”

In the two years since the creation of the task force, violence at clinics has dropped precipitously: There have been just three incidents of bombing or arson.

Ashcroft is expected to come under pressure from anti-abortion forces to take a milder approach. They feel the department’s enforcement policies represent an unfair intrusion into the lives of law-abiding activists and unfairly inhibit their right to express their views.

“The whole law itself needs to be done away with,” said Wendy Wright, spokeswoman for Concerned Women for America, a conservative organization that opposes legal abortion. “Even if Ashcroft decides not to use it in an unfair manner, it can still bankrupt pro-lifers and drag them through the mud.”

Ashcroft, like every attorney general before him, will have considerable latitude in deciding which law enforcement issues to emphasize and where to allocate discretionary funds. Former Atty. Gen. Edwin M. Meese III, for example, created task forces to combat pornography and drug crimes; other attorneys general concentrated their resources on organized crime.

“If you have discretionary funds and they can be used for task forces of one kind and another, the monies are more likely to be allocated to garden-variety federal crimes--extortion, drug trafficking, property crimes--than for the activities of the task force on clinic violence,” said Doug Kmiec, an assistant attorney general under former President Reagan and now a law professor at Pepperdine University.

Ashcroft would also have the opportunity to take a different course than Reno in filing friend-of-the-court briefs with the Supreme Court in cases that could place new limits on abortion access. The department’s briefs traditionally are given special attention by the high court.

Since Bush has said he would like to see more limits placed on abortion and would have signed the ban on “partial-birth” abortions that Clinton vetoed, it would not be surprising if his Justice Department files friend-of-the-court briefs endorsing restrictions.

“In terms of Supreme Court litigation, you would expect them to side with increased regulation of abortion,” said Philip B. Heymann, a law professor at Harvard University and a former deputy attorney general in the Clinton administration.

Another key responsibility of the attorney general, usually exercised through subordinates, is the screening of candidates for the federal bench. There are about 60 openings in federal district courts, and several appellate judgeships also are open.

Although candidates for the bench might not be asked directly about their position on abortion, it is likely that their records on the issue would be scrutinized.

If a Supreme Court justice retires, the attorney general almost certainly will help the president find a successor. “If they replace one of the Supreme Court justices, they would certainly appoint someone who was pro-life,” predicted Heymann.

It is not clear, however, whether the Bush administration would attempt to reverse the landmark 1973 Roe vs. Wade decision in which the Supreme Court ruled that abortion is a constitutionally protected right. Bush has not said what he would do, or recommend that his attorney general do, if the Supreme Court takes up a case that could result in Roe’s reversal.

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