Right to Choice under Nuclear Attack

The year before Roe v. Wade was decided, I met a poor, young woman in a rural American town who had five children, born one year apart. Sally's husband would show up about once a year, beat her up, knock her up, and leave her to fend for herself and the kids. She was a battered woman, trapped in a disastrous marriage. A lawful abortion was not an option for Sally, and she was afraid to go the back alley route.

In 1973, the Supreme Court decided in Roe v. Wade that a Texas law criminalizing abortion was unconstitutional. The due process clause, the Court said, protects the right to privacy, including a woman's qualified right to terminate her pregnancy. In the late stages of pregnancy, this right was balanced out by a compelling state interest in protecting unborn children. The Roe Court established a trimester scheme that allowed some state regulation in the latter trimesters. Nineteen years later, in Planned Parenthood v. Casey, the Supreme Court rejected Roe's trimester scheme, and held that any measure that puts an "undue burden" on a woman's right to abortion is unconstitutional.

The Roe decision galvanized the Christian right in an unprecedented way. In right-wing Evangelical churches throughout the country, a movement was mounted to overturn Roe v. Wade. A movie that referred to abortion in America as the new "holocaust" began to circulate during worship services.

Now, 32 years after Roe was decided, this sentiment has penetrated mainstream politics. It is embodied in a massive campaign to secure the appointment of judges who oppose Roe v. Wade.

Two days ago, the right-wing Evangelical movement organized a cable and Internet virtual church service called "Justice Sunday: Stop the Filibuster against People of Faith," broadcast from a mega-church in Louisville, Kentucky. Tony Perkins, president of the Family Research Council, estimated that 61 million households witnessed the event. Although cast as merely a campaign to convince senators to stop the Democratic filibuster of some of Bush's judicial nominees, the main thrust of the 90-minute program was to re-criminalize abortion.

The names, photographs and telephone numbers of senators who have not committed to the "nuclear option" to destroy the filibuster trailed across the bottom of the computer screen. Speakers argued that by blocking judicial nominees who oppose abortion, Democrats are discriminating against them.

James C. Dobson, founder of Focus on the Family, decried "six or eight very squishy Republicans" who oppose the destruction of the filibuster. Dobson, who recently compared the Supreme Court to the KKK and held it responsible for the "biggest holocaust in world history" since Roe v. Wade was decided, called the justices "unelected and unaccountable and arrogant and imperious and determined to redesign the culture according to their own biases and values - and they're out of control."

Another featured speaker was Judge Charles Pickering, appointed by Bush to the Fifth Circuit Court of Appeals during a Congressional recess to circumvent Senate opposition. Pickering, who voted for a constitutional convention to overturn Roe v. Wade, defensively cited his "civil rights" record for the crowd.

Behind the pulpit from which the faithful spoke loomed oversized photographs of nominees championed by the Christian right. The likeness of Bill Pryor, also propelled by Bush onto the US Court of Appeals during a Senate recess, was featured prominently. Pryor once called Roe v. Wade "the worst abomination of constitutional law in our history."

Particularly conspicuous were huge photos of California Supreme Court Justice Janice Rogers Brown and Texas Supreme Court Justice Priscilla Owen. On Thursday, the Senate Judiciary Committee, voting along party lines, sent the nominations of Brown and Owen to the Senate. Both were blocked by a filibuster in the last Congress.

While serving on the California Supreme Court, Brown opposed a minor's right to obtain an abortion without parental consent. Brown's previous nomination to the federal court was opposed by 250 law professors.

And in one case, Owen so twisted the law, that Alberto Gonzalez was moved to write, "To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism."

Yet judicial activism is precisely what the right-wing Evangelicals level at the sitting judiciary, including the nine justices on the present Supreme Court, seven of whom were Republican nominees.

Right-wing Evangelicals have attacked US Supreme Court Justice Anthony Kennedy for authoring the majority opinion in Lawrence v. Texas, which struck down an anti-sodomy law. And speakers on Sunday railed against same-sex marriage; laws against school prayer, the words "under God" in the Pledge of Allegiance and the Ten Commandments; and the refusal of judges to intervene in the Terri Schiavo matter. But their eyes were on the big prize: outlawing abortion.

For the first time since Roe v. Wade ushered in a "holocaust," the right-wing Evangelicals can smell red meat. I think the Republican leaders have promised leaders of the Christian right that, in return for their unflinching support, Bush will replace a Supreme Court justice who supports Roe with someone who will vote to reverse it, if he gets the opportunity. The Christian right may have even presented a list of acceptable replacements. The Republicans feel they must repay their political debt to the Christian right and they can only make it happen with the nuclear option, which Senator Robert Byrd has called "a legislative bomb that threatens the rights to dissent, to unlimited debate, and to freedom of speech." Dick Cheney, president of the Senate, has vowed to support the nuclear option in case of a 50-50 tie. The Republicans are willing to mortgage the future, if necessary, to repay this debt.

If they can stop the Democrats from using the filibuster to block Bush's anti-abortion federal court nominees, the right-wing Evangelicals can ultimately tip the balance of the Supreme Court and get Roe v. Wade reversed. Then, the only choice left for women like Sally will be a bloody coat hanger, or a life of misery.

Read on >>

Stories of a Charmed Life

Review of "Too Late to Die Young: Nearly True Tales From a Life," Harriet McBryde Johnson," Henry Holt & Co., 2005, 272 pp.

Harriet McBryde Johnson does not suffer fools gladly. She regularly protests Jerry Lewis's telethon for Muscular Dystrophy. She was appalled at the sight of the newly-crippled Christopher Reeve featured as prime time speaker at the 1996 Democratic Convention. Harriet has never been able to walk, dress, or bathe without assistance, due to a congenital neuromuscular disease. Yet this almost-50, feisty Southern belle lawyer and disability rights activist simply refuses to abide Lewis's patronizing "support" for the disabled, or the use of Reeve out on the DNC stage as a token "crip."

I first met Harriet at a National Lawyers Guild convention years ago. She doesn't exactly blend in with the crowd, with her tiny 70-pound frame draped in a shawl, hunched over in her ubiquitous wheelchair, chin resting on a delicate curled-down hand, ample earrings dangling beside her long braid. Harriet rolled on to the national literary stage with her debut on the cover of the New York Times Magazine and the accompanying story of her unlikely debate with Princeton University Professor Peter Singer, advocate of the "genocide" of disabled babies. That article is reprinted in slightly different form as one chapter of Harriet's book, titled "Unspeakable Conversations." It begins: "He insists he doesn't want to kill me. He simply thinks it would have been better, all things considered, to have given my parents the option of killing the baby I once was, and to let other parents kill similar babies as they come along, and thereby avoid the suffering that comes with lives like mine and satisfy the reasonable preferences of parents for a different kind of child. It has nothing to do with me. I should not feel threatened."

The heart of Harriet's argument is that disability does not predict quality of life; people are not fungible. She asks, what about mixed-race babies who are as unadoptable as babies with disabilities? Singer, according to Harriet, will not draw the line at race, just at disability.

A self-proclaimed atheist, Harriet objects to Singer's characterization of his critics with reference to religious terms such as "the doctrine of the sanctity of human life." One cannot consign Harriet to the same box as the religious right - both pressed for Terri Schiavo's case to be reviewed by federal courts, but for different reasons. In a recent article, Harriet argued, "Despite the unseemly Palm Sunday pontificating in Congress, the legislation enabling Ms. Schiavo's parents to sue did not take sides in the so-called culture wars. It did not dictate that Ms. Schiavo be fed. It simply created a procedure whereby the federal courts could decide whether Ms. Schiavo's federally protected rights have been violated." Whereas conservatives allegedly premise their position on the "right to life," the pro-choice Harriet opts for pure self-determination: "If we assume [Ms. Schiavo] is unaware and unconscious, we can't justify her death as her preference. She has no preference."

When asked about assisted suicide, Harriet replies, "choice is illusory in a context of pervasive inequality. Choices are structured by oppression. We shouldn't offer assistance with suicide until we all have the assistance we need to get out of bed in the morning and live a good life."

Harriet chides those convinced the disabled "suffer" from their disabilities. She loves life. Her day is meticulously organized around how she will get out of bed, bathe, dress, eat, go to the bathroom, and roll down the street to her office. Described in the book as "self-centered, smart, active, funny, argumentative, sociable, engaged, loving, vain, forgiving, and ready for adventure," the "Harriet character" takes the reader inside her bony skin, on a unique ride.

The memoir begins with three- or four-year-old Harriet playing with dolls on the living room floor. She sees on TV a little boy playing with toy soldiers on the floor. He is in a wheelchair, then a bed, then he's gone. "Little Billy's toy soldiers have lost their general," says the unseen narrator. He had Muscular Dystrophy. Harriet realizes that she, too, will die. In her recurrent dream, a judge sentences her to death. "The death sentence hangs over my childhood like a cloud," writes Harriet. "Beneath the cloud, I live a happy child's life. But then and now, life has a certain edge. I know it will not last." Harriet intones, "I've accepted the reality of death so early it's hard to imagine life without it."

Living under a sentence of premature death has not slowed Harriet McBryde Johnson one whit. "An awareness of death fosters appreciation for the stuff of life." She has unexpectedly reached middle age. "In the last twenty years or so, I've lost most movement in my arms and several fingers; in the last four years, I've lost the ability to swallow most solid foods and so much flesh that I am coming to look like the skeleton I will someday become. Yet, day by day, my physical deterioration has been slow, downright gentle. If the next twenty years are like the last, I'll be old. It certainly could happen."

Harriet has always been a force to be reckoned with. In 1983, Ronald Reagan visited her South Carolina law school. Harriet's sign read, "Ron steals from the poor & gives to the military." Before the President's arrival, Harriet refused to consent to a routine security search of her room unless she could be present. The Secret Service was no match for Ms. Johnson. Under the watchful eyes of Harriet, and Karl Marx, the agents conducted the search. Harriet's mother had given her the Marx poster because she thought a girl in student housing should have a big picture of a man over her bed.

Not one to mince words, Harriet, when told the first President Bush was speaking to foreign leaders in New York when she flew there to appear on NBC, mused, "I think there are still a few foreign leaders he hasn't thrown up on yet." His son has evidently taken care of the rest.

Harriet's character has been shaped by her disability, in spite of her disability. She is a fearless warrior, honest to a fault, tender as a kitten. The Southern charm of her hometown Charleston, and of Harriet herself, colors her stories. A consummate storyteller, this inimitable woman has created a heart-warming page turner.

Last October, Harriet was honored at the National Lawyers Guild convention with the coveted Ernest Goodman Award. It is granted each year to a lawyer engaged in legal struggle against financial, political or social odds to obtain justice on behalf of the poor, powerless or persecuted.

Harriet has been a tireless fighter for the oppressed. The problem, she says, is not disability. It is discrimination and prejudice. She worked to win passage of the landmark Americans with Disabilities Act in 1990, and continues the battle to render its promise a reality.

A woman who prides herself on making waves, Harriet thrives on living and loving. "When I die, I might as well die alive," she writes. "When I die, I might as well die striving after wind."

Read on >>

Whose Right to Life?

The nation’s attention is riveted on the fate of one poor woman in a Florida hospice. Terri Schiavo has been in a persistent vegetative state, with no upper brain function, for 15 years. Ten state courts have upheld Terri’s husband’s request to remove her feeding tube. Those courts have determined by clear and convincing evidence, a standard set by the United States Supreme Court, that Terri would not have wanted to be kept alive in such a condition.

Nevertheless, Terri’s parents, aided by Republicans in Congress and George W. Bush, are fighting to keep her alive. They have made her case a cause celebre. A memo circulated to GOP senators over the weekend described this as a “great political issue” because it will play to the “pro-life base” of the Republican Party.

The abortion debate has long been framed in terms of “pro-choice” versus “pro-life.” But this dichotomy has always struck me as misleading.

What is the “right to life”? Does it simply include unborn fetuses, stem cells, and people in persistent vegetative states? Or does it also refer to health care for the 40 million Americans who don’t have it; aid to children whose single moms can’t make ends meet; and billions of dollars in Medicaid – a virtual lifeline for millions – that Bush tried to cut? What about the 1524 American soldiers and tens of thousands of innocent Iraqis who have died in a war that never should have happened? Didn’t they have the right to life?

Unprecedented emergency legislation rushed through Congress on the eve of the Easter recess has sent the Schiavo case into the federal courts for a new round of hearings. After he signed the bill in the wee hours of Monday morning, Bush said, “In cases like this one, where there are serious questions and substantial doubts, our society, our laws and our courts should have a presumption in favor of life.”

This statute directly contradicts Bush’s actions while Governor of Texas. Then, Bush signed a bill that allows hospitals to stop feeding a patient whose prognosis is so poor that further care would be futile, if the patient cannot pay his or her medical expenses. Just this past week, a baby was pulled off life support in Texas, against his mother’s wishes.

As Governor, Bush refused to stay executions in numerous death penalty cases. Alberto Gonzales, then counsel to the Governor, provided his boss with "scant summaries" on capital punishment cases that "repeatedly failed to apprise the governor of crucial issues: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence," according to the Atlantic Monthly.

Gonzales prepared a summary of the case of Terry Washington, a mentally retarded man executed for murdering a restaurant manager. The jury was never told about Washington’s mental condition. Gonzales's three-page summary mentioned only that Washington's defense counsel's 30-page plea for clemency (which covered the mental competency issue) was rejected by the Texas parole board. Bush declined to stop executions in 56 of the 57 cases in which Gonzales wrote abbreviated memos.

In those cases, did Bush follow “a presumption in favor of life”?

Conservatives support the principle of federalism, or states’ rights. Each state should be able to maintain its own legal system, free from federal encroachment, according to this doctrine. But many Republicans have championed states’ rights only when they like the outcome and rejected it when they don’t.

As Congressman John Conyers Jr. (D-Mich) said on the floor of the House during the debate on Monday, “Last month, the Majority passed a class action bill that took jurisdiction away from state courts because they feared they would treat corporate wrongdoers too harshly. Today we are sending a case from the state courts to the federal courts even though it is the most extensively litigated ‘right to die’ case in our nation’s history.”

“By passing legislation which wrests jurisdiction away from a state judge and sends it to a single pre-selected federal court,” Conyers said, “we will abandon any pretense of federalism. The concept of a Jeffersonian Democracy as envisioned by the founders, and the states as ‘laboratories of democracy’ as articulated by Justice Brandeis will lie in tatters.”

One of the most tragic aspects of the Schiavo case is the effect this legislation will have on family decisions for years to come. Although the Democrats agreed to the bill only if it were limited to Terri Schiavo’s situation, it will certainly open the floodgates to litigation which inserts the courts into private matters.

This attempt by Republican leaders to “shamelessly interject the federal government into the wrenching Schiavo family dispute” amounts to a “constitutional coup d’etat,” according to the Los Angeles Times. It is “the new front in what began as the abortion war, an effort to translate religious dogma into law under the right-to-life banner.”

Read on >>