Summer 1987

NEWSLETTERAUL AMERICANS UNITED FOR LIFE Robert Bork and the HHS Future o f Roe A nnounces Tough Judge Robert H. Bork, 60, was appointed to the U.S. Court of Appeals Anti-abortion for the D.C. Circuit in 1982 and served as U.S. Solicitor General from 1973 - Regulations 1977. He is recognized by both liberals and conservatives for his impeccable qualifications. A conservative, Bork strongly ^^ecretary of Health and Human believes in yielding to the original Services Otis R. Bowen on September intentions of the Constitution and 1 presented new anti-abortion regula­ avoiding personal or novel interpreta­ tions that would limit all federally tion. Roe v. Wade, Bork has stated, funded family planning clinics from extends beyond constitutional intent. providing information about abortion In a 1981 Congressional hearing to pregnant women. he said, The directive for the Title 10 revi­ "I am convinced, as I think most sions was handed down by President scholars are, that Roe v. Wade is, Reagan at a July 30 White House brief­ itself, an unconstitutional ing to pro-life leaders. Justice Lewis F. Powell’s resigna­ decision ..." According to Reagan, the new regu­ tion, and President Reagan’s nomina­ While confirmation of Bork would lations will withhold federal money tion of Judge Robert H. Bork as his provide no guarantee of a reversal of from any program "that encourages, replacement, evoked cautious opti­ the abortion ruling, both pro-life and promotes or advocates abortion, or mism throughout the pro-life move­ pro-abortion forces agree that it would which assists a woman in obtaining an ment, while triggering an outcry dramatically increase the possibility abortion.” He added that the rules are among those who support the 1973 of a reconsideration of Roe. also intended to remove the “bias abortion decision, Roe v. Wade. During The 1986 Supreme Court abortion against groups that refuse to engage in the last 15 years, no development has ruling, in Thornburgh v. American abortion activities.” threatened the future of legalized College of Obstetricians and Gynecolo­ AUL chief staff counsel Maura K. abortion on demand more than the gists, fell one vote short of a major pro­ Quinlan, who attended the White current prospect of an anti-Roe major­ life victory. In their opinions, four of House briefing explained, "The intent ity on the Supreme Court. the nine justices called for a reconsid­ Justice Powell, 80, resigned in June eration of Roe and two said it should (continued on page 2, column 2) at the end of his 14th year on the be overturned. Powell voted with the Supreme Court. Regarded as a "cen­ majority in this case. trist,” Powell frequently offered the Since the Thornburgh ruling, former In This Issue swing vote in decisions which polar­ associate justice William Rehnquist • Horan Named to Congressional ized conservative and liberal members was elevated to chief justice, replacing Committee...... 3 of the Court. While he voted against Warren Burger, and Antonin Scalia • AUL Forum 1987 Update, tj - public funding of elective abortions, in was appointed to Rehnquist’s position Legal Workshop to be Held...... o s • From the Executive Director’s Desk oo r- two cases, he voted to strike down pro­ as an associate justice. • Court RoundUp...... life legislation restricting abortion at • For the Record...... the state level. (continued on page 2, column 1) 2

NEWSLETTERAUL

Bork and Future HHS Announces Tough Regulations (continued from page 1, column 2) (continued from page 1, column 3) Beginning September 15, the Senate of Congress was that Title 10 would ducting abortion activities using Judiciary Committee will begin tele­ not support or promote abortion. nonfederal funds, would be required vised hearings on the nomination of Unfortunately, due to lax regulations, to keep the two activities completely Judge Bork. According to Chairman the opposite has happened. separate, including separate offices, Sen. Joseph Biden (D-Del.) the commit­ "These regulations are needed to phone numbers, finances, exits and tee will vote on the nomination by purge the federal family planning entrances, personnel, etc. This would October 1. The matter would then rest program of its present tendency to ensure that no federal funds are in the hands of the full Senate, who subsidize the biggest promoters of spent on abortion activities. unanimously confirmed Bork’s 1982 abortion in this country, including • Federally-funded organizations nomination for the D.C. Court of Planned Parenthood.” would be barred from paying dues to Appeals. The $142.5 million-a-year Family any outside organization that uses its Speedy confirmation proceedings Planning Program was instituted in funds for pro-abortion lobbying or could put Bork on the bench in time to 1970 to "address preventative family direct advocacy, including the pro­ hear oral argument for the Illinois planning services or infertility prob­ duction or display of films or bro­ parental notice of abortion case lems for women before they are preg­ chures that include abortion as an Hartigan v. Zbaraz which has been set nant,” according to Nabers Cabaniss option. for November 3. (See Court RoundUp, who administers the Family Planning Following a 60-day period for public page 3, for more details on this case.) Program. Cabaniss is the newly- comment, the final regulations will be Referring to Bork, one senior White appointed deputy assistant secretary published in the Federal Register in House official recently told AUL, "He for population affairs who replaces January. Copies of the preliminary was confirmed once. It would be tough JoAnn Gasper. regulations are available upon request for the Senate to go back and say it The proposed regulations, which do from AUL. made a mistake.” not require congressional approval, Yet, liberal, special-interest forces, include the following changes in the "The new regulations are needed to including members of the Senate Judi­ program: purge federal subsidies of abortion ciary Committee, have launched • No federally-funded clinics may pro­ activities." aggressive campaigns including a $1.5 vide abortion counseling or referrals, million anti-Bork media offensive by since these services do not further People for the American Way to block the prevention of pregnancy and the confirmation. Adversaries, how­ therefore fall outside the scope of ever, are finding it difficult to oppose Title 10. Bork on any grounds other than his • Any organization which runs a conservative views. federally-funded clinic while con-

time he might achieve some shift in The Democrats the court’s direction. They are deter­ and Bork mined to deprive him of the power to bring about any significant shift. Maura K. Quinlan Taken from an August 16, 1987 They have every right to vote against Chicago Tribune editorial, "The Judge Bork for any reason they please, court and special interest groups" including their ideological differences with him. But the public should recog­ nize the audacity and arrogance of what they are trying to do. They . . . Senate Democrats . . . close their should be stopped, just as Franklin minds against Judge Bork before even Roosevelt was 50 years ago, from try­ beginning confirmation hearings into ing to turn their power to advise and whether he has an open enough mind consent into the power to freeze the to be on the bench. They do not like court in the status quo and subvert the the idea that Ronald Reagan has gotten means by which it was designed to a third vacancy to fill and that this change. AULNEWSLETTER

Horan Named to Congressional Bioethics Board

^XlJL Chairman Dennis J. Horan Ethics at Georgetown University; In 1985 Congress enacted a law was appointed in August to serve on a and Kenneth Rosenbaum, M.D., direc­ establishing a Biomedical Ethics newly created Congressional Biomedi­ tor of clinical genetics at Children’s Board comprised of six members from cal Ethics Advisory Committee which Hospital, National Medical Center, each house of Congress. Pro-life mem­ will recommend national policy on Washington, D.C. bers of the Board include: Sen. Gordon issues such as fetal experimentation Also named were Christine K. Cas- Humphrey (R- NH), Sen. David Duren- and human genetic engineering. sel, M.D., professor of internal medi­ berger (R-MN), Rep. Tom Tauke (R-IA), Horan, past chairman of the Medi­ cine at the University of Chicago; Rep. Tom Luken (D-OH), and Rep. Tom cine and Law Committee of the Stanley B. Troup, M.D., professor of Bliley (R-VA). American Bar Association, will join medicine, health care, and human Those members with pro-abortion 13 other distinguished scholars and values at the University of Cincinnati; records are: Sen. Edward Kennedy (D- professionals. Kenneth Ryan, M.D., former president MA), Sen. Lowell Weicker (R-CT), Sen. Others named to the committee of the American College of Obstetri­ Dale Bumpers (D-CA), and Rep. Roy include: James Bopp, Jr., general coun­ cians and Gynecologists, professor at Rowland (D-GA). Two others have sel for the National Right to Life Com­ Harvard University; and Alexander mixed records, Rep. Bill Gradison (R- mittee; Rev. Donald McCarthy, Ph.D., Capron, professor of law at the UCLA, OH) and Sen. Albert Gore (D-TN). director of education for the Pope and executive director of the Presi­ The first report required of the Advi­ John XXIII Medical-Moral Research dent’s Commission on Ethical Prob­ sory Committee will focus on the fed­ and Education Center; Watson Allen lems in Medicine. eral funding of fetal experimentation. Bowes, Jr., professor of obstetrics and It will be submitted to Congress by gynecology at the University of North May 20, 1988. Carolina; Edmund Pellegrino, M.D., director of the Kennedy School of

Executive Director Edward R. Grant Director of Communications Guy Condon Editor/Director of Education Laurie Anne Ramsey The AUL Newsletter is published quar­ terly by Americans United for Life. AUL is a non-profit public interest law firm serving as the legal arm of the pro-life movement. Since its inception in 1971, AUL has been committed to defending human life through vigorous judicial, legislative and educational efforts. Americans United for Life 343 South Dearborn, Suite 1804 Chicago, IL 60604 Dennis J. Horan (312) 786-9494 4

AULNEWSLETTER

AUL Forum Schedule of October 30-31 Activities Chicago 1987 Update Ritz-Carlton Hotel Legal Workshop To Be Held October 30 AUL Legal Strategy Workshop Schedule day before AUL Forum 1987, Friday, October 30 AUL will host a Legal Strategy Work­ shop to examine and coordinate the 8:00 a.m.-3:00 p.m. Registration strategy to reverse Roe v. Wade 9:00-11:00 a.m. The Rights and Responsibilities through the courts. The October 30 of Abortion Alternative Agencies workshop, will also feature sessions Ann-Louise Lohr concentrating on the legal issues faced AUL, staff counsel by abortion protesters and abortion alternatives agencies. Nancy Watson "The purpose of the workshop," Chicago Loop Crisis Pregnancy according to AUL executive director Center Edward Grant, "is to gather pro-life 11:00-11:45 a.m. The Right to Protest Abortion: attorneys, legislative experts, and First Amendment and Other interested laypersons from across the Legal Issues nation to discuss pressing legal con­ Ann-Louise Lohr cerns, most notably the effort to reverse Roe. Walter Weber "Participants will be able to voice Catholic League their reactions and suggestions to the 11:45 a.m.-12:45 p.m. Free time attorneys who are directly responsible 12:45-3:15 p.m. State Abortion Legislation and for coordinating the ‘Reversing Roe' the Strategy to Reverse Roe v. strategy.” Wade Edward Grant AUL, executive director Maura K. Quinlan AUL, chief staff counsel 3:30-4:15 p.m. Federal Regulations and Legisla­ tion Concerning Abortion James Bopp National Right to Life Committee Douglas Johnson National Right to Life Committee 4:15-5:00 p.m. Euthanasia: Cases and Statutes ^ AU L Thomas Marzen National Legal Center Edward Grant FORUM19 8 7

MHHHIHHil 5

AULNEWSLETTER ROEv. WADE Roe v. Wade. Throughout the past 15 years, this decision has fostered wide­ spread deterioration of the most criti­ cal institutions of American soc E. Peb Jackson Richard John Neuhaus Allan C. Carlson from the economy to the family, and hear nationally-known expe discuss this important topic froi variety of perspectives. AUL Forum 1987 Schedule Saturday, October 31 Master of Ceremonies E. Peb Jackson Focus on the Family

7:15 a.m.-3:15 p.m. Registration Dr. Richard Glasow Professor Hadley Arkes Sidney Callahan 7:15-8:15 a.m. Continental Breakfast 8:15-9:30 a.m. Keynote Address Richard John Neuhaus The Center on Religion and Society 9:35-11:00 a.m. Allan C. Carlson The Rockford Institute Richard Glasow National Right to Life Committee 11:00-11:45 a.m. Hadley Arkes Amherst College Nat Hentoff Professor James Rogers Dr. Bernard N. Nathanson 11:45 a.m.-l:15 p.m. Free time 1:15-2:45 p.m. Sidney Callahan Blocks of rooms have been reserved Mercy College at the Ritz-Carlton and other surround­ Nat Hentoff ing hotels. A list of these hotels will be Nationally-syndicated columnist included with registration confirma­ 3:00-4:30 p.m. Presentation, Guardian of Life tion materials. Award All sessions of AUL Forum 1987 will James Rogers be taped and made available on audio­ Wheaton College (III.) cassette. Watch for details in the Fall Bernard N. Nathanson AUL Newsletter. Narrator, “The Silent Scream" Register today! See the enclosed regis­ and “Eclipse of Reason “ tration card for details. AULNEWSLETTER

From the Executive Director's Desk

Dear Friend, It may be hard to believe, but January will mark the 15th anniversary of Roe v. Wade. Twenty million American lives have been lost to abortion since that day — the entire population of 12 western states (excluding California). Just viewing these numbers alone, the impact of Roe upon American society is obvious. Look at any two children in your neighborhood in the eighth grade or younger. Without Roe, there might be another alongside them. But what has this done to those of us who do live, and who constitute the American society of the late twentieth century? Like all good questions, this is not just a matter of intellectual curiosity. For the future of Roe v. Wade—and of the next generation of American children — will depend largely upon our ability to perceive and communicate the impact of Roe upon our professions, our economic system, and not least, the women for whom abortion is an option. A good question deserves a thoughtful answer. So we have invited leading experts in law, economics, religion, psychology, the family, and journalism to give us that thoughtful answer at AUL Forum 1987, on October 31, at the Ritz- Carlton Hotel in Chicago. Remember that the legal strategy to reverse Roe is not simply a matter of convincing the courts that the legal doctrine of the decision is wrong. That’s important, but equally as important is documenting that decision’s devestating impact upon the victims of abortion, and upon the whole of society. We won’t answer the question of Roe’s impact in one day. But just as our 1984 conference on Roe v. Wade spawned a legal strategy that now energizes the entire pro-life movement, this conference will spawn new research and discussion that will be the ammunition of our movement for years to come. That’s why I want you to join us — our “ammunition" is only useful if it’s placed in the right hands. Of course, the legal issues facing the pro-life movement continue to mount. I hope you will join us on October 30, the day before AUL Forum, for an all-day legal strategy workshop, conducted by the AUL legal staff, with assistance from other leading pro-life attorneys. We will not only discuss pending legal issues on abortion and euthanasia, but also, the growing challenges to pro-life activ­ ists and alternatives agencies. If you can’t make it to the Forum or the Workshop, please consider becom­ ing an AUL Forum Patron. Your contribution in the enclosed envelope is sorely needed to cover Forum expenses, which run far higher than our registration revenue. Also, it will enable us to open the Forum to students and others of limited means who should attend this event. 1 hope to see you on October 30 and 31. Sincerely, NEWSLETTERAUL

Judge Alsop also struck down the "We have two objectives before the C o u rt 48-hour waiting period as excessively Supreme Court,” said AUL executive long, although he stated that some director and general counsel Edward RoundUp period would be appropriate to give Grant. "First, to defeat the ACLU’s parents time to consult with their argument that AFLA is unconstitu­ daughter. tional because its pro-life policy con­ Hartigan v. Zbaraz The decision affirming Judge Alsop stitutes an establishment of religion. The U.S. Supreme Court has re­ was only a partial victory for the pro­ Second, to overturn the district court scheduled oral argument for Novem­ abortion plaintiffs, however, since they ruling that religiously-affiliated chari­ ber 3 on the Illinois parental argued that in operation, the parental ties cannot receive public support for notification statute. Argument, origi­ notice rule, even with a judicial waiver their work in providing care and coun­ nally set for April 1, was postponed for option, violated the rights of minors. seling to adolescents with profound additional briefing. The decision whether to appeal rests needs.” "The postponement is definitely to with the Minnesota attorney general. If our advantage," stated AUL chief staff an appeal is taken, it would likely be National Organization for Women v. counsel Maura Quinlan, who authored heard sometime during 1988. AUL will Scheidler two amicus briefs in this case. "The submit an amicus brief in support of A federal district judge in Chicago Court will now give a broader review the statute. has refused to dismiss the antitrust to the rights of parents to be involved action brought against two activist in abortion decisions made by their Kendrick v. Bowen pro-life organizations by the National children.” In a case that will affect the ability Organization for Women and two abor­ of government to subsidize pro-life tion clinics. The ruling, which has no Hodgson v. Minnesota alternatives to abortion, the federal bearing on the merits of the case, will In a case that could reach the government has appealed to the permit NOW and the clinics to prepare Supreme Court, the Eighth Circuit Supreme Court to uphold the Adoles­ evidence of an antitrust violation. court of appeals has struck down the cent Family Life Act (AFLA). AUL represents the Pro-Life Action Minnesota parental notice law. AFLA was enacted in 1981 to fund a League, and its executive director, The Minnesota law requires both variety of programs seeking to prevent Joseph Scheidler. AUL has moved the parents of a minor seeking an abortion adolescent pregnancy, and to care for court for reconsideration of its refusal to be notified at least 48 hours prior to adolescent mothers and their children. to dismiss the complaint. the performance of the abortion. In Recipients were prohibited from coun­ the event this "absolute notice” seling for, encouraging, or performing Preston v. Thermalito School District requirement is invalidated, the statute abortions. Funds were distributed A California superior court judge permits minors to seek a judicial under the program to approximately has refused to dismiss the complaint waiver of the notice requirement. 80 secular organizations, and 20 brought by AUL against a teacher, The statute was challenged upon organizations with some religious principal, school district, abortion passage in 1981, and from that time affiliation. clinic, doctor and counseling agency until November, 1986, operated with In April, Judge Charles Richey of the for their roles in an abortion per­ the judicial waiver option available U.S. District Court in Washington, formed on a 14 year-old girl without to minors. D.C., struck down AFLA insofar as it parental knowledge or consent. Statistics from the Minnesota provides funds to "religious organiza­ The complaint charges that the Department of Health show that both tions.” However, he refused to grant an teacher, with the approval of her prin­ abortion and childbirth among teenag­ injunction against the entire program, cipal, arranged for the girl to obtain ers decreased during the period the as sought by the American Civil Liber­ an abortion and provided transporta­ statute was in effect. The overall rate ties Union. The ACLU has cross- tion and housing so that the abortion of teen-age pregnancy also fell, by appealed this aspect of the ruling to could take place without parental 19 percent. the Supreme Court. knowledge. It also charges that the In November 1986, district judge AUL has represented an intervening- teacher wrote notes to deliberately Donald Alsop struck down the entire defendant in the case, United Families deceive the parents as to the reason for statute because he concluded that the of America, a pro-family organization the girl’s absence from home. requirement that both parents be based in Washington, D.C. AUL will Pre-trial discovery and investigation notified violated the constitutional also file an appeal in the case. has been ongoing for a year, and the rights of those minors living with a case is being prepared for trial in 1988. divorced parent. (continued on page 8, column 1) 8

NEWSLETTERAUL

Court RoundUp For the Record (continued from page 7, column 3)

Jobes v. Lincoln Park Nursing Home • It’s a sign of the times — and a good • "The 'Small Beginnings’ of Euthana­ The New Jersey Supreme Court has one — that many of the items in this sia: Examining the Erosion in Legal ruled that the family of a severely issue of the AUL Newsletter have been Prohibitions Against Mercy-Killing” brain-damaged 32 year-old woman can prominent news in the major media by C. Everett Koop, M.D., Sc.D. and order the nursing home in which she throughout the summer. Edward R. Grant, J.D., Notre Dame resides to cease feeding her and per­ The retirement of Justice Powell. The Journal of Law, Ethics & Public Pol­ mit her death by starvation. appointment and hearings on Judge icy (Vol. 2, Issue No. 3, 1986). The court held that the constitu­ Robert Bork. The President’s new tional right of privacy includes the restrictions on the federal funding of • “Homicide of the Unborn Child: The right to refuse all medical treatment, Planned Parenthood and other abor­ Born Alive Rule and Other Legal and that there is no distinction tion promoters. The new Congressio­ Anachronisms”, by Clarke D. For­ between providing nourishment and nal biomedical ethics advisory board. sythe, Valparaiso University Law other forms of medical treatment. The The controversial euthanasia decisions Review (Spring 1987). court also held that in the case of a from the New Jersey Supreme Court. • "The Slide Toward 'Mercy Killing’”, "persistently vegetative” patient, such Not all of the news is good, but we papers by Professor Yale Kamisar as Mrs. Jobes, there is no "conceiv­ hardly expect that. But it constantly and Dr. Leo Alexander, Child and able” state interest in preserving the reminds us that our pro-life mission is Family Reprint Booklet Series (1987). life of the patient. The court also held having an impact. And that much more that the nursing home must partici­ work remains to be done. Pro-life Educational Film pate in the withdrawal of nourish­ ment, despite its strong ethical Recent Pro-life Materials Avail­ • "Eclipse of Reason,” narrated by objections. able from AUL Bernard N. Nathanson, M.D., (Berna- "Mercy-killing by omission is now dell, Inc., 1987, 27 minutes), '/2-inch legal in the state of New Jersey,” stated • Abortion and the Constitution: VHS video cassette, $39.95 (plus AUL staff counsel Clarke Forsythe. "In Reversing Roe v. Wade Through the $4.95 shipping and handling). this case, Nancy Jobes was kept alive Courts (Georgetown University Press, by a feeding for over five years with 1987, 374 pages), $12.95 (soft bound) Available for the First Time from AUL the full consent of her family. It was and $22.95 (hard bound). For Every Idle Silence by Henry J. their decision, not hers, to change Hyde (Servant Books, 1985, 135 pages) their mind and petition to starve her AUL Studies in Law, $6.95 (soft bound). to death. Medicine & Society "Even more remarkable is the requirement that the nursing home $3 each (postage-paid) participate in what it considers to be • The Limits of the Law: Reflections on an unjust killing. The family didn’t ask the Abortion Debate by James Tun- for this part of the decision, and there stead Burtchaell was no evidence or argument pre­ sented on the point. • The Indivisible Fight for Life by Nat "In a supreme act of judicial arro­ Hentoff gance, the court forced the nursing (Complete publication list available home to choose between the law and upon request) the Hippocratic Oath.” Despite the court’s ruling, the family Journal Reprints of Nancy Jobes subsequently transfer­ red her to Morristown Memorial Hos­ $3 each (postage-paid) pital, where her feeding was ceased • "Two Ships Passing in the Night: An and she died on August 3. Interpretavist Review of the White- Stevens Colloquay on Roe v. Wade by Dennis J. Horan, Clarke D. Forsythe, and Edward R. Grant, Saint Louis University Public Law Review (Vol. VI, No. Two 1987).