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The frontal attack : Bush, Ashcroft, Thompson et Al

mercredi 30 avril 2003, par Dominique Foufelle

I am going to try and provide you with information that you might not already have on what is underway insofar as restricting women’s rights in general and reproductive rights in particular. As we will all see, and as one says in French, " il y a du pain sur la planche " for those of us concerned with and active in protecting and promoting women’s rights, especially those of poor and minority women.

The reason why I make that last distinction is that quite frankly, I don’t think we can foresee a serious impact on access to a certain number of acquired rights by middle-class and/or well-off women in America. Though some setbacks may occur, history has shown us that this particular category of women has always managed - in the realm of reproductive rights more specifically - to get by and obtain what she was looking for, be it contraception, an abortion, etc.
A quote by Susan Estrich from her article in The Nation (October 9, 2000) sums this up well :
" What will happen if George W. Bush is elected and another Justice or two retire ? Will middle-class women lose the right to take the pill or undergo a procedure in a doctor’s office that will terminate unwanted early-stage pregnancies ? Probably not. Will abortion again be illegal in America ? Probably not. Will doctors across American be locked up for what are now routine procedures ? Probably not. (In fact) What Roe v. Wade (essentially) means is that if your are lucky enough to live in a place where doctors aren’t afraid to do abortions and you have the money to pay for one, and you don’t have to bring cash in an envelope, then it is safe and legal until viability... On the other hand, if the Catholic hospital is the only one in town, or you are under 18, or poor, or live in North Dakota rather than Santa Monica, or don’t notice your period is late because you’re just a kid, you may have real troubles. You may have to bring suit, if you are a teenager, even it’s a relative who raped you ; you may be too late for an early abortion, and then have to sort through the obstacles and regulations that start kicking in with force. In most states, if you are poor and depend on Medicaid for healthcare, they will provide everything but an abortion. In much of the country, outside urban areas, finding a local doctor, hospital, or clinic is simply impossible ; in 86% of all counties, most of them rural, sometimes, whole states, there are none. If you have money you can go to another state. "
Hence what is truly at stake now is how and by what means feminists both at home and abroad are going to stick their necks out and defend women’s rights for all women, as well as promote the economic and social well-being of poor women in the United States.

I suggest that we first take a look at the track record of President Bush and some of his key cabinet members in the realm of reproductive rights, welfare reform, and other areas. Again, I hope to be presenting info that you may not have come across. Then, starting from an analysis of Bush’s first executive order, the reinstatement of the " global gag rule ", I would like to outline what he has specifically defined as his ambitions in the realm of women’s and reproductive rights, and how, with help from Ashcroft and Thompson, he might very well achieve them. In essence, what Bush et al. will strive for is "giving back to the States" the rights they should have to regulate in a variety of areas. History shows us, though, that regulation from the federal level is required to guarantee civil rights for all US citizens.

Bush’s First Day : The Global Gag Rule


First a look at Bush’s first day in office. George W. Bush’s grandfather, Prescott Bush, and George Bush Senior did not succeed in transmitting their concern with overpopulation to their descendant. Grandfather Bush lost his first US Senate race due to Catholic voters who rejected his support of the organization Planned Parenthood. Likewise, George Bush Sr., as a young Congresman was the author of the Family Planning Act in 1970 and wrote, "Success in the population field under United Nations leadership may in turn determine whether we resolve successfully the other great questions of peace, prosperity, an individual rights that face the world".
On his first workday, George W. Bush "betrayed" his elders through an executive order that put an abrupt end to U.S. federal funding for international family planning programs that use their own money for counseling or performing abortions. Examples of the effect of the new GGR : a certifying NGO in El Salvador where abortion is illegal even if a woman will die as a result of her pregnancy can no longer write a letter to legislators supporting changes in abortion law. A certifying NGO in Russia where most abortions are legal, can no longer express support to the government for policy changes to make legal abortions safer.
Contrary to an editorial in Le Monde commenting on the " limited impact " of this decision, dramatic consequences will result from Bush’s first executive order. According to the World Health Organization, because of laws prohibiting abortion or lack of access to abortions, 55,000 unsafe abortions are performed everyday, 95% of them in developing countries. [1] Obviously, this results in high mortality rates : in parts of the developed world aside from Europe, the risk of dying from an unsafe abortion is one in 3,700 procedures, in Europe one in 1,900, in Asia (excluding Japan, Australia, New Zealand) one in 250, and in Africa one in 150. [2]
Not only will access to pregnancy termination be compromised and increase the mortality rate, essentially of young women, but general health care services for people in developing countries are under attack. For example, those family planning services around the world that will no longer receive funds because they offer counseling or provide abortion will also be financially gagged in their fight to eradicate the spread of AIDS through education on the use of the condom. According to the National Institutes of Health, "AIDS is the most profound and immediate threat to life on earth", especially in developing countries. More than 36 million people in the world now have HIV or full-blown AIDS and everyday about 15,000 are newly infected with HIV. In sub-Saharan Africa, 8.8 % of people 15 to 49 years old are HIV-infected.
Something to also keep in mind is the fact that the GGR would be unconstitutional if applied in the US. Thus it clearly creates a double standard by restricting overseas grantees from spending their own non US-funds for abortion-related speech and activities.

Bush’s track record


To take full stock of the "Bush-as-president" horror show, let us take a brief look at his track record in the realm of reproductive rights.
In the three legislative sessions during which he was governor, he signed 18 anti-choice provisions into law. In the most recent 1999 Texas legislative session, among other provisions, he signed laws :
* Prohibiting the use of state family planning funds to dispense prescription contraceptives to minors without parental consent.
* Expanding Texas’s onerous abortion clinic regulations and $2500 licensing fee to physician’s, raising the cost of abortions, all the while prohibiting the use of state family planning funds to pay the direct or indirect costs of abortion procedures.
* Prohibiting school-based health centers that receive specified grants from providing reproductive services, counseling, or referrals at all.
* Denying tax exemptions to certain not-for-profit organizations that perform, refer for, or assist other organizations in performing abortions.
* Making it a felony for anyone taking a 14-16 year-old out of the state to obtain an abortion, including grandparents and other family members.
In a previous 1997 session, Bush signed laws :
* Prohibiting publicly funded attorneys from assisting poor women in exercising their constitutional right to choose an abortion.
* Mandating clinic regulations that single out abortion facilities from other outpatient centers for compulsory government oversight and control, including granting the Texas Department of Health to revoke an abortion facility’s license before a hearing and impose administrative penalties of up to 1,000 dollars a day.
* Allowing HMOs to refuse to recommend, offer advice, pay for, provide, assist, etc. any health care service, including abortion that violates its religious convictions.

These are just a few examples. It is also interesting to take a glance at Dick Cheney’s track record in this area, which in some aspects is even more disturbing. During his ten years in the US House of Representatives, he cast 26 anti-choice votes that :
1. Prohibited women enrolled in Federal Employee Health Benefits plans from choosing health insurance that provides abortion coverage even in cases of rape, incest, or life endangerment.
2. Banned Medicaid coverage for abortion services for low-income women even in cases of rape, incest, or life endangerment.
3.Prohibited courts from ordering states to use state money to provide abortion services for low-income women.
4. Banned federal funding for abortion services for US servicewomen and military dependants and Peace Corps volunteers even in cases of rape, incest, and life endangerment.
5. Defined the word "person" under the Age Discrimination Act of 1974 to include a fetus from the moment of conception.

Bush’s functions and ambitions


As you all know, the President plays an important role in proposing and overseeing public policy. One of the most important ways he does this is in his choice of cabinet members as well as 4 to 5 thousand federal bureaucrats to key positions. Likewise, you know the role he plays in naming federal district court judges and those of the Supreme Court.
Insofar as directly shaping public policy is concerned, his first two acts - he GGR executive order and the creation of a "White House Office of Faith-Based and Community Initiative" through yet another executive order, designed to help direct federal funds to religious organizations so they can provide social services in lieu of government programs.

Three key players served as the godfathers of this plan. I will only present two, since the third is Ashcroft and I’ll be getting to him soon.
A / Marvin Olasky, Pofessor of Journalism at the University of Austin and longtime advisor to Bush, is considered as the architect of the Faith-Based Initiative (the FBI, if you prefer). As editor of the Christian newsweekly, World Magazine, Olasky is a vocal advocate of removing the wall between religion and the state. He also is a rabid anti-feminist, and I quote from an interview he gave wherein he blamed feminism for just about everything, then proceeded to explain that God did not really intend for women to be leaders : "God does not forbid women to be leaders in society, generally speaking, but when that occurs it is usually because of the abdication of men. There is a certain shame attached".
B/Stephen Goldsmith, chair of a new advisory board which will work on the initiative. During his two terms as mayor of Indianapolis, he became known as a pioneer in free-market solutions to urban issues, and especially pushed to allow religious organizations to provide social services. In a defense of the FBI, Goldsmith has gone on the record saying, "The Salvation Army should be able to apply for government funds to feed or house a homeless person through any government program that applies so long as it provides Bibles and conducts prayer sessions with its own money, not with government funds".
It is hard to determine here whether Goldsmith is 1. Naïve, 2. Just plain dumb, or 3. As we say in French, "il se fout de nous". Whatever the case may be, the FBI will definitely take funds away from programs such as Title X and other social programs that many US women who do not have health insurance, for example, depend on for the most basic health services.

Bush and the courts


Probably the most important act the President accomplishes and that implies shaping public policy over the long term is his nomination of federal district court judges and US Supreme Court justices. Given the age of the current membership of the US SC, it seems likely that at least two of the next three Justices to leave the Court will be ones who support Roe or Casey. Three of the four oldest members of the Court (Stevens, 80 - O’Connor, 70 - Ginsburg, 67 ; Rehnquist, 76 does not) recognize that the Constitution protects the right to choose an abortion under either Roe or Casey. If only two of these three left the Court (most likely Stevens and O’Connor), then Bush could easily fulfill his dream of replacing them with anti-choice judges, tipping the balance in favor of overturning Roe since the count would then be Rehnquist, Scalia, Thomas, justice Bush 1, justice Bush 2, hence 5 justices against Roe, and Ginsburg, Kennedy, Breyer, Souter, hence only 4 justices in favor.
There is no secret that Bush looks to Scalia and Thomas as role model judges, strict constructionists to use the legal lingo, and there is a likely chance that the Senate will approve any nomination Bush might be making in the near future. In the 106th Congress, only 32 pro-choice senators. NOW ?????
But, as you know, before the US SC decides a case, most battles take place in the states. There are at present at least 80 vacant positions across the federal district circuit (some advance the figure 136) that Bush will be filling, and it is here that he will truly be able to impact on women’s lives and their access to a right to privacy. In his declared intention to place strict constructionist judges in these positions, he will be aided by his Attorney General, John Ashcroft, so let us now turn to this absolutely central figure in the Bush administration.
First, let’s start with the function followed by Ashcroft’s track record.

Ashcroft’s functions and ambitions


As Attorney General, Ashcroft will make decisions that will have a profound and long-term effect on the nation.
1.The AG is the President’s chief legal counsel, and as such helps the President shape legal policy, such an important branch in US democracy. As such, Ashcroft has gone on the record saying he would advise President Bush as to how to obtain an amendment to the US Constitution outlawing abortion, thus bypassing Roe.
2.The AG advises the President on what judges to name. As such, Ashcroft will be instrumental in placing anti-choice judges across the nation and on the Supreme Court when the time comes.
3.The AG is the nation’s foremost law enforcement agency, thus is responsible for guaranteeing that laws are fully applied. As such, Ashcroft can choose or not to tangibly enforce FACE, for example, or other laws guaranteeing the exercise of civil rights.
4.The AG issues opinions on the constitutionality of pending federal legislation. As such, Ashcroft will inform the President and key congressional members on the feasibility or not of certain proposals, such as the pending "Child Custody Protection Act " - will return".
5.Last but not least, the AG’s right-hand man, the Solicitor General (sometimes called the "Tenth Justice" ; now Theodore Olson) plays a determinant role in what case the US Supreme Court accepts to hear and represents the United States before the US SC.
This last point requires some development due to its importance. Solicitor General, Theodore Olson (who successfully argued Bush’s case before the US SC in December) will be wielding a significant amount of power. The SG is notably successful at persuading the US SC to hear or not hear cases, and at winning the ones it argues. While the US SC generally hears about 5% of petitions filed in one year, it accepts to hear almost 75% of cases presented by the SG. Overall, from 1959 to 1989, the Government’s position, argued before the US SC by the SG, prevailed in 67.6% of all cases.
When students ask why there are so many abortion cases heard by the US SC, one only has to answer by looking to the role played by the SG. During the Reagan and Bush Administrations, the SG advocated repeatedly for the dismantling of Roe v. Wade, initiating most of the cases heard throughout the 1980s and early 90s.

Ashcroft’s track record


The list is so long that it is impossible to mention every assault Ashcroft has led against women, women’s rights, and reproductive rights in particular. Just a few choice bits :
As AG of Missouri (1979-1985), Ashcroft :
* Defended a Missouri regulation that prohibited poor women from obtaining public funds to pay for medically necessary abortions to preserve their health, and argued it all the way to the US SC.
* Brought suit against the National Organization of Women for exercising their First Amendment right to sponsor a boycott of states that had not ratified the ERA, alleging that NOW had violated federal anti-trust laws. He appealed all the way to the US SC and lost.
* Testified before Congress in favor of the Human Life Amendment/Bill (Helms and Hyde) stating that life begins at conception, and equating his defense of innocent persons (fetuses) with that of abolitionists against slavery in the 19th century.
* Attempted to block nurses in Missouri from providing basic gynecological services (providing contraception, condoms, PAP smears) by intervening on behalf of the respondent in a Missouri Supreme Court case.
As Governor of Missouri (1985-1992), Ashcroft :
* Signed a bill that stated that life begins at conception, prohibited abortions at publicly funded facilities, and prohibited public employees from performing or counseling on abortion. The bill was challenged all the way to the US SC in the famous Webster v. Reproductive Health Services (1989), wherein the US SC gave back to the states the possibility to further regulate access to abortion. Thus, for Ashcroft, Webster was a victory.
* Vetoed nearly 1 million dollars in appropriations for Missouri’s overburdened foster-care system.
* Supported a bill that would have outlawed abortion performed for 18 different reasons including to prevent multiple births, because of nonuse or failure of contraception, to avoid single parenthood, to prevent the birth of a handicapped child, because of financial reasons. The bill carried severe criminal penalties, but was not passed.
As US Senator (1995-2000), Ashcroft :
* During Senate debates on banning so-called "partial-birth" abortion, called talk of preserving the woman’s life as "rhetorical nonsense".
* Voted against the repeal of the Hyde Amendment that now bans Medicaid coverage for abortion except in cases of rape, incest, and life endangerment.
* With Helms and Smith, Ashcroft sponsored an amendment to the US Constitution to ban abortion even in cases of rape, incest, life endangerment. The proposal also involved outlawing certain contraceptive methods.
* On the 1998 anniversary of Roe, Ashcroft marched with the Missouri Right to Life group.
* Voted in favor of overturning Roe v. Wade.

If this is not enough to convince you to act, take note of the opinion expressed by Stuart Taylor, conservative journalist writing in the National Journal on January 13, 2001, who elsewhere has defended the US SC decision in Bush v. Gore. In an article entitled "A Character Assassin Should not be Attorney General", strongly argued against the confirmation of Ashcroft as AG.
"Ashcroft is not the man to head the Justice Department. The job is vested with such vast authority over the lives of people great and small, and such symbolic importance, that the minimum qualifications should include honesty, fair-mindedness, and judicious self-restraint in the exercise of power… John Ashcroft is an able and accomplished man who won the respect of many Senate colleagues in both parties. But he is unfit to be AG. The reason is that during an important debate on a sensitive matter, then Sen.-Ashcroft abused the power of his office by descending to demagoguery, dishonesty, and character assassination" (the Judge Ronnie White affair)."

Tommy Thompson’s functions and initial acts


Let us now turn to Tommy Thompson, former governor of Wisconsin, unanimously approved by the Senate as the new Secretary of the Department of Health and Human Services, and who has a few tricks up his sleeve that will definitely impact upon women’s rights in general and the right to privacy in particular.
As head of this important Department, Thompson is the Cabinet member most able to affect women’s reproductive freedom and health matters. Indeed, first and foremost, he advises President Bush on all health-related matters, proposes policy, and plays an important role in regulation.
* Thompson has direct responsibility for administering the Title X family planning program. This program serves approximately 4.5 million women per year, and funding has lagged far behind inflation. The program provides health care for all women regardless of age, marital status, income, or health insurance status. The fee a Title X clinic asks is in function of the woman’s income level. Thompson will be responsible for furnishing budget previsions for Title X, thus shaping the future of access to health care for American women, especially those who do not have health insurance. It has been rumored that he will reinstate the domestic "gag rule" in which Title X clinics will no longer be subsidized if they counsel, refer to, or provide abortion services.
* Oversees the Food and Drug Administration. Hence, one of his first acts was to ask the FDA to reconsider the safety of the RU 486, approved for commercialization by the FDA in November 2000 after 12 years of sufficient study, yet pressure from pro-life groups to block approval.
* The HHS Secretary oversees the activities of the US Surgeon General, thus plays a determinant role in shaping public health education.
* Responsible for formulating nation-wide health policy. As such, Thompson lost no time in delaying the implementation of Medical records privacy rules developed during the Clinton administration and which should have gone into effect in February. Thompson, under pressure from health insurance companies, doctors, and employers, has put them on hold until April 26, and he most probably will reject them, though the rules simply call for full informed consent in the transfer of medical data.
* Finally, the HHS Secretary will decide how federal authority is used to supervise an array of programs that reach the poor and disabled. To get a glimpse at what awaits us, a look at his track record in this area is more than revealing.

Tommy Thompson’s track record


As former Governor of Wisconsin, Thompson is known as the father of W-2, the Wisconsin welfare program that was more than an overhaul. Indeed, Wisconsin became the first state to end AFDC and implement the W-2, the new state welfare program administered and run by a mixture of non-profit and private companies. Thompson points to its success, but a closer look reveals a somber picture, the bottom line being that Wisconsin’s welfare cutbacks have left people working more but poorer, with a substantial number of them desperately poor.
* True, welfare rolls plummeted in Wisconsin, by 67% since 1986. By 1997, a mere 25% of all Wisconsin’s poor families were receiving cash assistance compared with 60% in 1986.
* But income from work was not making up for families’ loss of welfare. Studies show that 60% of families who left welfare were "worse off" one year later in that their incomes had fallen by more than 1,000 dollars. The state’s own leaver study found, indeed, that the majority of leavers live below the poverty line.
* The number of people who lived in extreme poverty and were receiving food stamps increased more than three times, from 10% in 1989 to 32% in 1997, while nationally, the size of this group remained constant over this time period.
* In terms of child and family well-being - from 1991 to 1998, there was a 32% increase in the number of children removed from their homes and placed in foster care (51% increase in Milwaukee alone). A rise in infant mortality has also been documented. The national downward trend in mortality rates for Black and Hispanic infants has been reversed in Wisconsin. The mortality rate of Black newborns, once lower than in other Midwestern states, is now the highest in that same region.
* Aside from cash assistance, poor people turn to the Medicaid program. Enrollment there has dropped in Wisconsin, largely due to Thompson’s role as governor in failing to implement a federal law that requires states to maintain Medicaid coverage for families leaving welfare.
* The most astonishing is in the privatization of social services in Wisconsin. Now that for-profit and non-profit companies handle the determination of eligibility, job placement, and provision of support services, and because they receive a portion of the funds that are saved when caseloads and services are reduced, they have an incentive to deny benefits. As a result, private agencies in Milwaukee have been able to pocket 27 million dollars of the 138 million dollars in federal funds they administer. Moreover, recent investigations have discovered that the largest of the private agencies, Maximus Inc. and Goodwill Industries improperly billed the state hundreds of thousands of dollars.

As head of the HHS, Thompon will be a strong proponent of extending to the remaining big social programs for the poor — food stamps and Medicaid — the same changes in federal law that allowed welfare to be turned into block grants and subsequently privatized in Wisconsin. He is already on the record as favoring this, and even if Congress were to resist, he has the power and authority to issue state waivers to the same end. Indeed, Wisconsin has a waiver request pending to privatize the administering of food stamps.
One last note on Thompson. His image of social moderation in the realm of reproductive rights is only that - an image. As governor, Thompson quietly signed more anti-abortion regulations than all but a handful of governors. During the 1990s, he signed bills restricting access to abortion and family planning services including a 24-hour mandatory waiting period for women, a parental consent law, and a "partial-birth" abortion ban overturned last year by the US SC (5 to 4) in Stenberg v. Carhart.
The only area where Thompson risks running head on into Bush and pro-life forces that have supported Bush and now play such an important role is in the area of stem cell research. Thompson has publicly said he was in favor of research on "abandoned embryos" and cells extracted from them following assisted reproductive procedures, and this is putting him in direct confrontation with Bush who for the time being is having a hard time deciding what position to take.

Pending in the 107th Congress and what you can do


Only after two months, five bills are already on both the House and Senate floors that directly jeopardize women’s right to privacy.

1. Teen Endangerment Act ("Child Custody Protection Act") : makes it a federal crime for any person other than a parent to transport a minor across state lines for an abortion. This bill passed in the House in 1999 despite a threatened veto from Clinton. It most probably will be passed soon and approved by Bush. This bill would endanger the health of pregnant teens by discouraging them from turning to trusted adults, and force them to travel alone. One-third of teenagers who do not tell their parents about a pregnancy have been victims of family violence and fear it will occur.

2. "Partial-birth" abortion ban : Each of the past three Congresses have passed legislation banning this practice, which I remind you only involves 1% of all abortions and is necessary in 99% of cases to save the mother’s life or due to severe fetal deformity usually followed by death at birth. The US SC last year struck down a similar ban, yet nothing will prevent a federal law to be passed, approved by Bush, to then enter into the challenged phase by feminist and other groups that could take two years before reaching the US SC again. With Bush and Ashcroft manning the potential recomposition of the court, prospects are bleak. PARTIAL-BIRTH ABORTION BAN PASSED IN MARCH 2003 !

3. RU-486 Patient Health and Safety Protection Act : This bill would restrict the physicians who prescribe the drug to only those who are licensed to perform surgical abortions. This thus goes further than the initial guidelines set out by the FDA when it finally approved the drug last year.

4. Unborn Victims of Violence Act : This bill would grant independent legal status to a fetus under federal law by making it a crime for an individual to cause the death of or injury to a "child in utero" at any stage of development. The legislation, if passed, would be the first federal law to recognize a fetus as an independent victim of crime, with legal rights distinct from those of the pregnant woman who has been harmed by a violent act. Though on the surface, this could appear harmless and even justifiable, it nonetheless will alter the existing legal framework by elevating the fetus to an unprecedented status in federal law. The bill had previously passed in the House, never in the Senate yet, and Clinton always expressed his opposition to the bill.

5.Unborn Children’s Civil Rights Act (Helms) : Quite simply, a total ban on abortion and certain contraceptive measures in virtue of the argument that an embryo/fetus is a person from conception.

As a conlusion , what can you do ? A lot


* Don’t forget, 42 Democrats voted against Ashcroft. I have their names, bombard them with letters, emails.
* Send non-stop emails, letters, to Congress and President reminding them that there is a strong feminist constituency out there.
* Finally, partake in three Alert programs on the web that organizes petitions, emails, letters, faxes :
ACLU CRLP : http://www.aclu.org
NARAL – Pro-choice America : www.naral.org
www.saveroe.com : access to Planned Parenthood, federation of America

P.-S.

Jennifer Merchant, march 2001
Conference for Democrats Abroad, Women Caucus

Notes

[1] WHO (1998). World Health Day/Safe Motherhood, 7 april 1998. Address Unsafe Abortion (Online). http://www.safemotherhood.org.

[2] Mpangile, G.S. et al., "Induced abortion in Dar es Salaam, Tanzania : The Plight of Adolescents", in Axel I. Mundigo and Cynthia Indriso, eds., Abortion in the Developing World, London, Zed Books, 1999. WHO, ibid.

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