NRTL Responds to Roberts Nomination

In an interview conducted by Hugh Hewitt with Nan Aron, president of the liberal Alliance for Justice, on April 11, 2005, the following exchange occurred: Hewitt: "Do you oppose and urge a filibuster for John Roberts?" Aron: "Yes, we would." See:

In 1990, as a Justice Department official under the administration of President George H. W. Bush, Roberts wrote a brief in a pending Supreme Court case stating the Administration position "that Roe was wrongly decided and should be overruled. . ."

After being nominated in 2001 by President George W. Bush to the U.S. Court of Appeals for the District of Columbia, Judge Roberts was reported favorably out of the Senate Judiciary Committee by a vote of 16-3, and confirmed by the Senate by unanimous consent on May 8, 2003.

ADDITIONAL BACKGROUND INFORMATION:
RECENT AND UPCOMING ABORTION CASES

The current Supreme Court, including Justices Rehnquist and O'Connor, is divided 6 to 3 in favor of the Roe v. Wade doctrine that abortion must be allowed for any reason until "viability" (about five and one-half months), and for "health" reasons (broadly defined) even during the last three months of pregnancy. The myth that the current Supreme Court is divided 5 to 4 on Roe, although cultivated by some pro-abortion polemicists and repeated by some journalists, was refuted by Annenberg Center's FactCheck.org.

However, "The Supreme Court is clearly divided 5-4 on partial-birth abortion," Johnson said. "The successor to Justice O'Connor will cast the deciding vote on whether the brutal partial-birth abortion method remains legal."

On July 8, in the case of Carhart v. Gonzales, the U.S. Court of Appeals for the Eighth Circuit ruled that the federal Partial-Birth Abortion Ban Act, signed into law by President Bush in 2003, is invalid because it conflicts with the 2000 Supreme Court decision in Stenberg v. Carhart. In that Supreme Court case, five justices struck down Nebraska's ban on partial-birth abortion. The effect of this Supreme Court ruling was to invalidate the laws enacted by more than half the states to ban partial-birth abortion, an abortion method in which a living premature infant is mostly delivered alive before being killed by puncturing her skull and removing her brain. O'Connor voted in the majority to strike down the bans on partial-birth abortion in that 5-4 ruling.

"Five years ago, five justices of the Supreme Court, including Justice O'Connor, ruled that Roe v. Wade allows an abortionist to perform a partial-birth abortion any time he sees a 'health' benefit, even if the woman and her unborn baby are entirely healthy," Johnson said. "The Eighth Circuit ruling in Carhart v. Gonzales was based entirely on the prior 5-4 Supreme Court decision." NRLC's complete statement on the Eight Circuit ruling is here.

Moreover, the Supreme Court may also be divided 5 to 4 on the question of parental notification for abortion. The Court has already accepted for the fall term the case of Ayotte v. Planned Parenthood, a case in which the U.S. Court of Appeals for the First Circuit struck down New Hampshire's parental notification law. If the Supreme Court adopted the approach of the First Circuit ruling in this case, it could gut the parental notification laws of a number of other states as well. Based on past cases, it appears most likely that the current Court would split 4-4 on the case, with O'Connor (who has voted both for and against specific parental involvement laws in the past) as the deciding vote.

MYTHS ABOUT ROE

Some journalists and some pollsters continue to describe a fictional Roe v. Wade. For example, an NBC News/Wall Street Journal poll conducted by Hart/McInturff July 8-11, 2005, presented respondents with this misleading statement: "The Supreme Court's 1973 Roe versus Wade decision established a woman's constitutional right to an abortion, at least in the first three months of pregnancy." Likewise, pollsters with the Princeton Survey Research Associates International, polling for the Pew Research Center for the People & the Press survey on June 8-12, 2005, misinformed respondents, "In 1973 the Roe versus Wade decision established a woman's constitutional right to an abortion, at least in the first three months of pregnancy."

These wordings falsely suggest that the "right" created by the Supreme Court ruling applies fully only during "the first three months of pregnancy," a concept that the Court itself has forcefully repudiated on numerous occasions. For example, in the 1992 Casey ruling the Court reaffirmed Roe v. Wade, but the Court explicitly rejected any distinction whatever between the first and second trimester, stating, "We reject the trimester framework, which we do not consider to be part of the essential holding of Roe." In the most recent ruling on abortion, Stenberg v. Carhart (2000), the Court majority reaffirmed that restrictions on reasons for abortion or methods of abortion are impermissible up until "viability," which is near the end of the SECOND trimester (and, that states must permit abortion for "health" reasons even during the final months of pregnancy). Indeed, even though partial-birth abortions ARE NEVER performed in the first trimester, the Court majority ruled that partial-birth abortions are FULLY protected by Roe v. Wade.

Much of the public has been misled into believing that "overturning Roe v. Wade" means the same thing as "banning all abortions." This misinformation greatly distorts the public debate over the Supreme Court and Roe v. Wade. Yet some news outlets continue to reinforce this distortion. For example, a page one story in USA TODAY on July 5 discussed whether the President "will name a justice who would vote to outlaw" abortion. Yet no Supreme Court justice has voted "to outlaw" abortion. Instead, Rehnquist and others have voted to allow democratically elected lawmakers to decide what degree of protection should be provided for unborn children. As the leading pro-abortion litigation group expressed it last year: "A Supreme Court decision overturning Roe would not by itself make abortion illegal in the United States. Instead, a reversal of Roe would remove federal constitutional protection for a woman’s right to choose and give the states the power to set abortion policy." ("What if Roe Fell?," Center for Reproductive Rights, September 2004)

For detailed information on the Partial-Birth Abortion Ban Act, see "The Partial-Birth Abortion Ban Act: Misconceptions and Realities," here.

National Right to Life is the nation's largest pro-life organization, with 50 state affiliates and approximately 3,000 local affiliates nationwide. NRLC works through legislation and education to protect those threatened by abortion, infanticide, euthanasia, and assisted suicide.