The Case Against the Confirmation of John Ashcroft As Attorney General of the United States: Part II

As Attorney General

As Missouri’s Attorney General, Ashcroft staked out extreme positions that he later continued to promote as a U.S. Senator. For example, in 1981, during his second term as Attorney General, Ashcroft testified before a U.S. Senate Judiciary Subcommittee in favor of a bill to provide that human life shall be deemed to exist from conception. Ashcroft testified, "Both now and in my first term as attorney general, I have devoted considerable time and significant resources to defending the right of the State to limit the dangerous impacts of Roe v. Wade, a case in which a handful of men on the Supreme Court arbitrarily amended the Constitution and overturned the laws of the States relating to abortions." Hearings Before Senate Judiciary Subcommittee on S. 158, "Human Life Bill," 97th Cong., 1st Ses. (1982), at 1106.

Ashcroft testified that the "Human Life Bill," if enacted, would effectively undo the Supreme Court’s Roe v. Wade decision and eliminate a woman’s constitutional right to choose, returning the situation to that "prior to 1973." Id. at 1107. In addition to effectively eliminating a woman’s constitutional right to choose to terminate a pregnancy, the Human Life Bill, by defining life as beginning at conception, could have been invoked to ban even some of the most common and reliable forms of contraception, such as the birth control pill.

However, even this extreme bill, which would have effectively reversed Roe v. Wade and permitted states to criminalize abortion, was not enough for Attorney General Ashcroft. Because the bill would "allow considerable latitude to the 50 states in their approaches," Ashcroft testified that he "would regard this bill as an important but insufficient step in the protection of human life." He testified that a "human life amendment would remain necessary," amending the U.S. Constitution to effectively ban abortions altogether in the United States except to save the woman’s life. Id. at 1107.

In addition to the extreme nature of Ashcroft’s substantive position on abortion, Ashcroft’s testimony reveals disturbing views for a state’s top law enforcement officer charged with the duty to uphold the letter and spirit of existing law and advise legislative bodies do the same. In testifying in support of the Human Life Bill, Attorney General Ashcroft actively encouraged Congress to undo a then nine-year old Supreme Court ruling, stating that the bill would provide a way for "a court desirous of reversing the error-ridden decision of Roe v. Wade" to do so. Id. Ashcroft also testified that the legal testimony of the bill’s opponents describing the law’s clear unconstitutionality "reflects an analytic misperception of the function of the forum of the Congress." He explained, "Whether this bill is healthy enough to survive constitutional challenge can only be determined by the courts in the proper discharge of its responsibilities. I urge the Congress to pass the bill and allow the courts to make that decision." Id. at 1106.

While Ashcroft went on to note that he and others believed that the bill was constitutional and Roe v. Wade was not, the notion that Congress and other legislatures should "allow the courts" to decide on constitutionality and not feel constrained to carefully consider and try to determine such questions is disturbing. Indeed, on those occasions when Congress considers laws seeking to overule or counteract Supreme Court decisions, Congress should and generally has made every effort to explore and reach its own resolution on constitutionality. Ashcroft’s testimony in this regard reflects poorly on his ability to serve as U.S. Attorney General with the responsibility for enforcing the letter and spirit of existing laws and providing impartial analysis and advice to Congress and the President concerning the constitutionality of legislative proposals.

As Attorney General, Ashcroft played a particularly active role in defending efforts by the state to restrict women’s reproductive rights. In Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983), Ashcroft personally argued the case before the Supreme Court in defense of a Missouri law requiring, among other abortion restrictions, all second-trimester abortions to be performed in hospitals, not outpatient clinics. The hospital requirement would have made it very difficult for many women, particularly poor women, to obtain an abortion because of the cost, inaccessibility and, in some cases, unavailability of abortions at hospitals. (In describing at a later time his reasoning for handling the argument himself, he said, "I think my own personal argument made a statement about the intensity of the state’s position on the issue." The Springfield News-Leader (April 23, 1989). One Missouri paper editorialized after Ashcroft’s oral argument: "All the pious talk about maternal health, in short, is simply [a] way of camouflaging the real intent of the hospitalization requirement, which is to make abortions as difficult as possible for women to obtain." St. Louis Post-Dispatch (12/4/82). In a 6 to 3 ruling joined by conservative Chief Justice Burger, the Supreme Court struck down this requirement as imposing a heavy and medically unnecessary burden on a woman’s right to choose. The day after the hospital requirement was struck down, an unrepentent Ashcroft said if the state was "being forced to allow second-trimester abortions to be performed in clinics" that he would look into imposing licensing requirements on the clinics. St. Louis Post-Dispatch (6/16/83).

During his oral argument, which The American Lawyer magazine described as the "the most disappointing argument of the day," Ashcroft was forced to concede that Missouri had singled out second-trimester abortions for this burdensome treatment and that the state did not require any other medical procedures to be performed in a hospital. Missouri Times (2/21/83). In addition, Ashcroft took an even more extreme position in an attempt to defend the law when he asserted that the state could, if it wanted, require that all babies be delivered at hospitals. St. Louis Post-Dispatch (12/1/82). Justice Thurgood Marshall’s response demonstrated the radical nature of this position: "Then a poor woman who couldn’t afford to go to a hospital would be committing a crime if she gave birth." Id.

In Sermchief v. Gonzales and State of Missouri, 660 S.Wi2d 683 (Mo. 1983), Ashcroft both intervened and submitted an amicus brief in a case in which a state agency was attempting to block professional nurses from providing routine gynecological services to women pursuant to standing orders and protocols signed by physicians. Such services included conducting breast and pelvic examinations, performing PAP smears and other lab tests, and providing and giving out information about contraceptives. The Missouri Supreme Court rejected Ashcroft’s position and ruled unanimously that professional nurses could perform these services under Missouri statutes. Ashcroft’s position would have held that nurses could not perform these critical reproductive health services, thus reducing and burdening women’s access to these services in terms of cost and accessibility. The exceptional nature of the case at that time was noted by the Missouri Supreme Court. It stated that despite the fact that at least forty states had modernized or expanded their nursing practice laws in the prior fifteen years, the Attorney General’s office and other state counsel could not cite a single case anywhere challenging the authority of nurses to perform similar services.

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