Targeting
Roe
In Abortion Fight,
Little-Known Group
Has Guiding Hand
Americans United
Chips Away In Legislatures, Courts;
Coaching New
Hampshire Inspired by NAACP Playbook
By JEANNE CUMMINGS,
WSJ.com from the Web, November 30, 2005
WASHINGTON -- In the first
Supreme Court abortion case in five years, attention will be focused on New
Hampshire Attorney General Kelly Ayotte, who this morning will defend a state
law requiring that a parent or doctor be notified before a minor terminates a
pregnancy.
But behind the scenes is a
little-known Chicago-based organization called Americans United for Life, which
for some 30 years has been guiding the effort to chip away at Roe v. Wade.
A self-described "nonprofit, public-interest bioethics law firm," Americans
United crafted the language used as a model for the 2003 New Hampshire law.
Clarke Forsythe, a top lawyer with the group, earlier this month flew to Concord
to help Ms. Ayotte practice the arguments she'll make before the justices.
Americans United lawyers "were a big help," says Dan Mullen, an assistant
attorney general in New Hampshire. "They made themselves available for any
information we may need." Ms. Ayotte declined to comment.
The New Hampshire case is just the latest step in Americans United's strategy to
ultimately persuade the Supreme Court to overturn Roe, the landmark 1973
ruling establishing a woman's constitutional right to an abortion. It's a
plan first outlined by the group in a 1987 book, titled "Abortion and the
Constitution: Reversing Roe v. Wade Through the Courts," that still
serves as a legal blueprint for the antiabortion movement. The group takes
its inspiration from another long, gradual and ultimately successful effort to
bring a fundamental change to American society through the courts: the
National Association for the Advancement of Colored People's drive to overturn
the Supreme Court's "separate but equal" doctrine that underpinned segregation.
The civil-rights group's plan was to chip around the edges for years before
finally succeeding in having the high court overturn the 1896 ruling.
Americans United, as a legal braintrust of the antiabortion movement, has a
similar, carefully calibrated attack, based on helping states pass laws that
test the limits of abortion regulations, then defending those laws in courts.
If their game plan stays on track, New Hampshire will be just the first of many
such cases testing Roe that the group will shepherd toward the high court
over the next few years.
As of 2004, more than 30 states had passed parental-notification laws similar to
New Hampshire's, modeled on boilerplate language from Americans United.
More than 20 states have enacted separate "informed consent" laws advocated by
Americans United that require doctors to tell patients of health risks from
abortion. Americans United also backed passage of a Virginia ban on a
late-term abortion procedure. A challenge to that law and another
involving a similar 2003 federal law, could be on the Supreme Court docket as
early as next year.
Roe's fate ultimately rests, of course, with the Supreme Court's nine justices.
That's a big reason for the intensifying fireworks behind next year's
confirmation hearings on Judge Samuel Alito, widely seen as a Roe
skeptic, who has been tapped to succeed retiring Justice Sandra Day O'Connor, a
Roe defender on the bench.
But a major factor shaping the questions that reach the court will be Americans
United's strategy in navigating cases through the system to that level.
"You don't get a case to the Supreme Court by putting it in a brown paper
wrapper and putting it on the Supreme Court steps," says Mr. Forsythe. Now
47, he joined Americans United fresh out of law school and has been helping
steer the anti-Roe cases through the legal system for the past 20 years.
He's been Americans United's executive director, president and is now heading a
new bioethics legal project.
'Puppet Masters'
"They really are the puppet masters behind President Bush and other antichoice
politicians and they want to see Roe v. Wade overturned," says NARAL
Pro-Choice America President Nancy Keenan, who battled against legislation
inspired by the group a decade ago in the Montana Legislature. "They were
using the states as laboratories for their antichoice measures and they used
them very effectively," she says. Ms. Keenan says that approval of the New
Hampshire law by the Supreme Court "would open the flood gates for more
antichoice measures and you can be sure this group will lead the way."
In contrast with more visible antiabortion groups such as the National Right to
Life Committee, Americans United's leaders toil largely unnoticed in the
backrooms of legislative committees and appellate-court strategy sessions.
Within the anti-Roe movement, there are "purists" and "incrementalists,"
says Peter Samuelson, Americans United's president. "We are incrementalists," he
says.
Based in a warehouse-like office building just a few blocks off Chicago's
Magnificent Mile shopping district, the group has five full-time constitutional
lawyers and an annual budget of $1.4 million donated by individuals and
foundations. The group works on a broad range of "life" issues. In
2001, it began drafting "model legislation" for states to block assisted suicide
and ban human cloning and certain types of embryo research.
But its roots are in the abortion fight. The group was founded in
Washington in 1971 by two doctors worried that the growing women's rights
movement was giving strength to a push to legalize abortion. That's
exactly what happened two years later, when the Supreme Court ruled in Roe v.
Wade.
The opinion struck down a Texas law that banned abortions except in cases where
the mother's life was threatened. But it was a nuanced ruling that left
plenty of room for later court battles. The opinion, written by Justice
Harry Blackmun, said that abortions during the first trimester of a pregnancy
could not be restricted, since, the court found, a fetus during that period was
not "viable," or able to survive outside the womb. In the later stages of
pregnancy, the court said, states could regulate abortion in a way that balanced
the government's legitimate interest in protecting "viable" fetuses and the
health of the women undergoing the procedure. But even those restrictions,
the justices said, must not be applied when a woman's life or health were at
risk -- either physically or psychologically.
The 7-2 ruling instantly transformed a political debate over abortion into more
of a legal one. So in 1975, Americans United's founders reorganized to
become a legal operation and relocated to Chicago, where three prominent lawyers
began guiding the organization.
The group soon began a summer internship for law students, the beginning of an
effort to seed a future generation of antiabortion lawyers. Mr. Forsythe
became one of those recruits. He first grew interested in the abortion
issue while studying at Indiana's Valparaiso University School of Law, and he
says he was influenced by the 1979 book, "Whatever Happened to the Human Race,"
a challenge to the morality of abortion written by C. Everett Koop, later
surgeon general under President Reagan and an early board member of Americans
United.
As a young lawyer in March 1984, Mr. Forsythe attended a strategy session
convened by Americans United on overturning Roe. The meeting, held
in the historic Palmer House Hotel in Chicago, centered on the NAACP's
antisegregation campaign that culminated in the 1954 Brown v. Board of
Education decision. The ruling nullified the nearly 60-year-old old
Plessy v. Fergusson and led to the desegregation of public schools.
Big Lesson
One big lesson Americans United lawyers took away from the NAACP's success was
to move modestly, to avoid attacking the targeted ruling too directly or too
soon, which could produce an adverse decision and create an even higher hurdle
to overcome. The NAACP, fearing that any loss would hobble its momentum,
began with narrow challenges to segregated graduate and law schools -- an arena,
the NAACP gambled, where judges would most easily identify the inequities of the
"separate but equal" status quo.
Americans United's step-by-step approach set several targets. They
included pushing provisions in state abortion laws to recognize and protect
unborn children such as mandating a second physician be assigned to treat the
fetus in late-term abortions. The group sought expansion of parental
rights in cases of minors -- first pressing for parental notification and then
pushing for a parental consent. And it helped pass 24-hour waiting periods
for minors, and then adult patients, and then began expanding them to 48 hours.
The group successfully helped defend some of these measures before the Supreme
Court.
Americans United lawyers watched with concern as Pennsylvania drafted a 1982 law
attempting to regulate abortions. That law, which went beyond the group's
suggested language for such provisions, tried to narrow the terms of the "health
exception" allowed under Roe. The Supreme Court, seizing on that
provision and others, struck down the whole law in 1986.
In the next few years, Justices Antonin Scalia and Anthony Kennedy, two
well-known opponents of abortion rights, joined the court. Americans
United and its allies decided to send up a test case that could lead to
overturning Roe.
The group helped Pennsylvania legislators craft a new bill with that goal in
mind. The 1989 Pennsylvania Abortion Control Act included a health exception
drafted to meet the court's broader standard. Having made that concession
to Roe's defenders on the bench, it sought then to ask them to approve a
long list of new restrictions on abortion as well, such as requiring physicians
to counsel patients on abortion risks and imposing a 24-hour waiting period.
The legislation was signed into law by then-Pennsylvania Gov. Robert Casey, a
Democrat who opposed abortion rights, and was immediately challenged in a case
that became known as Planned Parenthood Southeastern Pennsylvania v. Casey.
The Supreme Court's Casey decision, issued on June 29, 1992, was seen at
the time as a big defeat for the antiabortion legal movement. Far from
overturning Roe, five of the court's nine justices -- including Justice
Kennedy -- used the 1992 ruling to reaffirm the legalization of abortion.
"It was a big reality check… demoralizing," Mr. Forsythe now recalls.
After watching coverage of the decision on television, he retreated to his
office to try to figure out what to do next.
But the court did hand Americans United and its allies a new avenue to raise new
challenges. The Casey ruling upheld most of the Pennsylvania law
and widened the door for states to regulate abortions. They could do so,
the court said, as long as the new restrictions didn't impose an "undue burden"
on the woman.
It was an ill-defined phrase that invited future litigation, and Americans
United has spent the past decade testing its limits.
One strategy has been to encourage states to pass more aggressive "informed
consent" laws, requiring doctors to inform patients about abortion risks and
fetal development. "This is a new and vital arrow in the pro-life quiver,"
Mr. Forsythe wrote in an internal document. The group put together sample
versions of the consent forms, which included in part information they'd
collected through their own studies on fetal growth and risks to women, such as
hemorrhaging or infection. Since passage of these laws required big public
debates in legislatures, Mr. Forsythe figured it would get some of the group's
information into the public discourse and turn some people against abortion
itself.
Aggressive Campaign
Mr. Forsythe also urged a more aggressive campaign to pass in other states the
Pennsylvania regulations upheld in Casey -- including a
parental-notification requirement like the one in New Hampshire.
Earlier this month, Mr. Forsythe sat down at a conference table in the state
attorney general's offices in Concord to hash out the arguments to defend the
law against the suit brought by Planned Parenthood of Northern New England.
The abortion-rights group argues that the law doesn't offer a broad enough
health exception. Among the key points Mr. Forsythe advocated was
reminding the justices that the New Hampshire law is virtually identical to a
1988 Minnesota law -- drafted by Americans United -- that was upheld by the
Supreme Court in 1990 and hasn't produced evidence of creating "undue burdens"
on minors.
Mr. Forsythe also sees the New Hampshire case as a chance to shift the burden of
proof in abortion cases from the pro-life to the pro-choice advocates.
Under current practice, when a state abortion law is challenged, courts
generally impose a preliminary injunction that blocks enforcement of newly
passed restrictions for years while the case is argued.
Mr. Forsythe argues in an amicus brief in the New Hampshire proceeding
that courts should instead require abortion-rights proponents to "prove" that
state restrictions, such as parental notification, create an "undue burden" on
patients. Mr. Forsythe writes that the current system "tempts plaintiffs
to rely on exaggeration, unsupported theories and speculation about what the
impact of the law might be."
Abortion-rights defenders say that it could take years to collect the data Mr.
Forsythe is asking be used as proof. It would require tracking patients
denied the procedure and then assessing the impact on their health and lives.
Meanwhile, women "could suffer health risks and the loss of their constitutional
rights," says Marcia Greenberger, co-president of the National Women's Law
Center, one of the oldest pro-Roe legal groups. "In the most extreme
cases, some women could actually die."
Write to Jeanne Cummings at
jeanne.cummings@wsj.com.
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