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Saturday, August 20, 2005

Adopt a Box of Docs: No Bad News in Abortion 1 (But Maybe a Nugget for the Slime Artists)

John Roberts can breathe a little easier perhaps because the box of documents labeled "Abortion 1" is empty of snares for the U.S. Supreme Court nominee. The box did, however, contain some horrifying memories and one sentence that liberals might construe as being critical of the 14th Amendment.

Remember when somebody in California found the unburied remains of about 17,000 aborted babies in 1981? The California Pro Life Medical Association used a supportive 1982 letter signed by President Reagan in a photo exhibit centered around the grisly discovery in 1985.

The association had also separately sought Reagan's "approval" to bury the dead babies in Arlington National Cemetary if permission was denied by state authorities for burial at a site there and the ACLU won its suit to have the remains burned.

In a January 1985 letter apparently drafted for White House Deputy Counsel Richard Hauser by Roberts, the association was told stop using the 1982 letter in the exhibit because its inclusion suggested Reagan was trying to influence the outcome of the group's pending litigation in state court. In an August 1984 letter also apparently drafted by Roberts, the association was told only military veterans and spouses who met certain conditions could be interred in Arlington National Cemetary.

Interestingly, in a background memo to Hauser from Associate Counsel Peter Rusthoven, the 1982 Reagan letter was described as having been drafted by the White House Correspondence Office and autopenned - i.e. Reagan's signature was done mechanically. In the same file, however, is a copy of a page of hand-written corrections to the 1982 letter that look very much like Reagan's penmanship.

A second element of the documents in Abortion 1 covers a 1982 Justice Department response to a proposed "Right to Life" amendment to the U.S. Constitution. Roberts apparently drafted a letter for Assistant Attorney General Robert A. McConnell to then-Senate Judiciary Committee Chairman Strom Thurmond. I say "apparently" because Roberts initials are nowhere to be seen on the letter in the file, but it is in the file and his job at that time including writing memos and letters interpreting the constitutionality or legality of various legislative proposals.

In any case, the proposed amendment read: "The paramount right to life is vested in each human being from the moment of fertilization without regard to age, health or condition of dependency." The proposal was introduced as S. J. Res 19.

The McConnell response described the proposal as "overly broad" and suggested that "a more narrowly drawn" text would accomplish the same purpose - making virtually all abortions illegal everywhere in the United States but without creating a wide range of potential new problems.

The balance of the McConnell letter suggested several of those potential new problems, including those proceeding from such an expansive definition of a right to life. The proposal could if ratified as drafted be construed, for example, to outlaw some forms of birth control such as the "morning after pill," as well as some medical treatments for the mother that could result in the death of an unborn baby.

The proposed amendment could have damaging results in other contexts besides the abortion controversy, the McConnell letter said, by leading to the establishment of a uniform federal code governing homicide, thus pre-empting existing state law, and also create grounds for deprivation of constitutional rights suits being filed on behalf of victims of auto accidents, thereby obviating existing state definitions of negligence.

And the McConnell letter said the expansive definition could be cited by capitol punishment opponents as grounds for anti-death penalty actions, as well as for proposals to enact certain "quality of life" standards for such material benefits as are necessary for living "a relatively comfortable existence."

Finally, the McConnell letter doubted that such conerns could be adequately covered in a detailed legislative history meant to guide courts in applying the amendment in specific cases. To illustrate the point, the McConnell letter noted "the expansive meaning given to the open-ended terms of the Fourthteenth Amendment despite historical evidence indicating the amendment was designed primarily or wholly to deal with problems of slavery and race relations."

Hmmm. If I was a desperate Senate staffer on the Democrat side or a creative propagandist for a pro-abortion lobbying outfit, would I construe that sentence as "proof" Roberts would have opposed the 14th Amendment if he had been around in that day? It would be a looooong stretch, but, hey whatever it takes, right?