People for the American Way Report in Opposition to the Confirmation of Michael W. McConnell

McConnell Strongly Opposes Roe v. Wade and Legal Protection for Reproductive Rights

McConnell’s numerous legal writings and statements evince a strident opposition to the 1973 Roe v. Wade decision establishing a woman’s right to privacy and reproductive choice. 410 U.S. 113. Describing the Roe decision as conferring a “private ‘right’ to use lethal violence to ‘solve’ personal. . . . problems,”47 McConnell has consistently stated that the decision was wrongly decided and illegitimate. He has called Roe “a gross misinterpretation of the Constitution,”48 an “embarrassment to those who take constitutional law seriously,”49 and a “grave legal error[] in the service of an extreme vision of abortion rights that the vast majority of Americans rightly consider unjust and immoral.”50 Equating Roe v. Wade with the infamous Dred Scott and Plessy v. Ferguson decisions which upheld slavery and the segregation of African Americans, McConnell has openly called on the Supreme Court to reverse and overturn Roe as “it did [with Plessy] in Brown v. Board of Education.”51

In addition, McConnell has advocated a constitutional amendment that would reverse “the doctrines of Roe v. Wade and [Planned Parenthood of Southeastern Pa. v.] Casey, and establishing that the right to life protected by the Fifth and Fourteenth Amendments extends to the unborn child.”52 Whether achieved by court decision or constitutional amendment, such action could justify federal or state legislatures banning abortion in all cases, except perhaps to save the life of the mother, including cases of rape and incest, and impose criminal sanctions against women who have abortions and the doctors who perform them.53 In fact, McConnell’s argument that the Equal Protection Clause should protect fetuses suggests that government not only would be permitted to ban abortion but actually would be constitutionally required to do so in most cases.54 Finally, McConnell has expressed the view that a “right of privacy” and of “personal autonomy” does not exist under the Constitution, which could threaten the right of women even to have access to birth control in some cases, new emergency contraceptives, and early “medical abortions” such as use of RU-486.55

Significantly, McConnell is already on record supporting broad, new legal restrictions on a woman’s right to choose even under Roe v. Wade and its progeny. While his ultimate goal is to reverse Roe and provide constitutional protection to embryos as persons, McConnell has endorsed and provided legal support for a “broad-based legal and political strategy” to “regulate the abortion industry in a number of ways.”56

In particular, McConnell has written that he would consider it a reasonable restriction to move back the “cut-off” date for regulating legal abortion from fetal viability to “implantation” of the fertilized egg in the uterus, “about 14 days” after conception.57 In order to uphold such an extreme restriction on a woman’s right to choose, one would have to reject the concept of viability established in Roe and reaffirmed by the Supreme Court over a quarter century later in Stenberg v. Carhart, 530 U.S. 914 (2000). That appears to be McConnell’s goal. He goes on to provide legal justification for evading or overturning this central framework underlying the Roe decision.58 It is precisely the ease with which McConnell legally defends such an extreme and clear violation of women’s established constitutionally protected rights as reasonable that would make him so dangerous to women’s rights if he is confirmed.

In addition, McConnell is on record supporting various other restrictions on what he terms “the abortion industry,” such as, for example, “bans on certain methods of abortion” and on “late term abortions” and requirements and waiting periods for women before an abortion.59 It is clear from his record that as an appellate judge unable to directly overrule Roe, McConnell would likely find legal justification to uphold just about any restrictions on a woman’s right to choose, chipping away at women’s fundamental rights if he is confirmed.

For example, in Stenberg v. Carhart, the Supreme Court struck down a ban on a certain method of abortion, a restriction envisioned by McConnell, ruling that, among other things, the statute was deficient because it lacked an exception to preserve the health of the mother.60 However, McConnell stated in 1998 that he considers the “health” exception so broadly defined by the Supreme Court under Roe and its progeny as to be “meaningless.”61 With respect to bans on “late term abortions,” they already exist and are permitted after viability under the Roe decision. McConnell mischaracterizes the law and factual reality of abortion, however, to argue that under Roe the “constitutional right to get an abortion. . . effectively applie[s] at any time during the nine months of pregnancy.”62 Finally, McConnell argues for increased “counseling” requirements by maligning vulnerable, dedicated doctors as “profit-making abortionists” rushing women to make “a quick decision.”63 As a federal judge, without overruling Roe, he could severely harm reproductive rights.

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