February 26, 2002

The Justice Department has filed a brief in the U.S. Court of Appeals for the Sixth Circuit in support of Ohio's abortion procedure ban. On February 4, the John Ashcroft/Ted Olson-led Justice Department filed an amicus brief asking the Sixth Circuit to uphold the Ohio law. The lower court struck down the law based on the U.S. Supreme Court's June 2000 ruling in Stenberg v. Carhart, which struck down a similar abortion ban from Nebraska.

Contrary to the claims of anti-abortion legislators, abortion procedures bans like the one invalidated in Carhart criminalize a wide range of vaginal abortion procedures, including the most common and safest procedures performed in the first and second trimesters, as well as late-term dilation and extraction (D&X) procedures.

In the 5-4 Carhart decision, the Supreme Court held that Nebraska's law violated women's constitutional rights by imposing an "undue burden" on their decisions to end their pregnancies and because it failed to provide an exception to protect women's health. The Court also found that the Nebraska law was so vaguely worded that doctors reasonably feared prosecution, conviction and imprisonment for performing any abortion procedure, not just the D&X method the law's proponents claimed to be addressing. The Nebraska law also outlawed the D&X procedure even if doctors considered that method the best way to protect a woman's health. As a result of the Supreme Court's ruling in Carhart, 31 bans across the country have been found to be either unconstitutional or have never been enforced by federal and state courts.

Ohio's law was signed by Governor Bob Taft in May 2000, a month before the Supreme Court's decision, but unlike the Nebraska law, it was more specifically written and contained an exception — available under extremely limited circumstances — to protect women's health. The lower court found the health exception inadequate because it did not allow the banned procedure "when it is simply safer than alternative methods of abortion, and that is what Carhart requires."

Justice Sandra Day O'Connor was the swing vote in striking down the Nebraska law. But she wrote that "a ban on partial birth abortion that only prescribed the D&X [dilation and extraction] method of abortion and that included an exception to preserve the life and health of the mother would be constitutional." In so doing, she gave hope to abortion opponents that a differently-worded ban could be accepted by the Court. Ashcroft's Department of Justice claims that the Ohio ban "provides exactly the health exception required by the Supreme Court" — even though, in reality, the Ohio law's health exception is extremely narrow.

This use of the courts by the Department of Justice to limit women's reproductive rights demonstrates the danger posed by John Ashcroft as Attorney General and Ted Olson as Solicitor General. They determine which legal cases and litigation strategies the federal government will support. John Ashcroft's opposition to reproductive rights is so extreme that he has urged a ban not only on abortion (even in cases of rape and incest), but also on some of the most effective forms of birth control, and NOW has questioned his commitment to enforcing the Freedom of Access to Clinic Entrances Act and the Violence Against Women Act.

In what has been called a "confirmation conversion," Ashcroft testified at his confirmation hearings on January 16, 2001: "I believe Roe v. Wade, as an original matter, was wrongly decided. I am personally opposed to abortion. But, as I have explained this afternoon, I well understand that the role of the Attorney General is to enforce the law as it is, not as I would have it. I accept Roe and Casey as the settled law of the land. If confirmed as Attorney General, I will follow the law in this area as in all other areas."

Terry O'Neill, NOW's Membership Vice President and an attorney, comments: "Despite his rhetoric, it's clear that Ashcroft did not accept the Supreme Court's ruling in Carhart and that he plans to use the office of the Attorney General to undermine Roe. The Department of Justice's position in the Ohio case demonstrates how dangerous it is for the women of this country to have an Attorney General who opposes their rights."

For background on the abortion procedures ban issue (deliberately mislabeled as "partial-birth abortions" and "late-term abortions" by abortion opponents), see:

Abortion Procedure Ban Information