This is the sixth entry in a series on FOCA by Stealth by AUL Vice President of Legal Affairs, Denise M. Burke. The entire article from which this series is taken is available at Beware of “FOCA-By-Stealth”: Radical Abortion-on-Demand Agenda Being Implemented Piecemeal.
Department of Justice Appointments
The U.S. Department of Justice (DOJ) is charged with enforcing federal law and ensuring the fair and impartial administration of justice for all Americans. To effectuate these important tasks, the President appoints the U.S. Attorney General and other senior officials at DOJ, including the Solicitor General and the head of the DOJ’s Office of Legal Counsel.
The Solicitor General conducts all litigation on behalf of the United States before the U.S. Supreme Court (USSC) and supervises other federal appellate court litigation directly implicating the interests of the Administration and the American people. In doing so, the Solicitor General routinely files briefs and presents oral argument in important cases before the USSC, including those involving the constitutionality of abortion-related restrictions and regulations. Thus, the Solicitor General is in a unique position to support or oppose such restrictions and regulations and to influence the way the USSC views such laws.
Prior to his inauguration, on January 5, 2009, then-President-elect Obama nominated Elena Kagan, then-Dean of Harvard Law School, to serve as Solicitor General. She was confirmed by the Senate on March 19, 2009. Ironically, Solicitor General Kagan, by her own admission, has very little litigation experience, but she is a strong abortion rights advocate who, for example, supports the use of taxpayer funding to pay for abortions.
Even more troubling was President Obama’s selection to head the Office of Legal Counsel (OLC). According to DOJ’s website, the OLC:
provides authoritative legal advice to the President and all the Executive Branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department . . . The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality.
Given their sweeping and critical responsibilities, the head and staff of OLC are supposed to be apolitical and academically disciplined.
President Obama has nominated Dawn Johnsen, a professor of constitutional law from the Maurer School of Law at Indiana University, to serve as the head of OLC. Prior to her academic career, Johnsen served as a staff counsel fellow with the American Civil Liberties Union (ACLU) and then for five years with the National Abortion Rights Action League (NARAL).
In 1989, as the legal director of NARAL, Johnsen filed an amicus brief in the USSC case, Webster v. Reproductive Health Services, a constitutional challenge to a Missouri law that restricted the use of state taxpayer funds and other state resources for abortions.
In her brief, Johnsen argued that any restrictions making abortion less accessible are tantamount to “involuntary servitude” because they require “a woman to provide continuous physical service to the fetus in order to further the state’s asserted interest [in the life of the unborn.]” She continued that, in effect, a woman “is constantly aware for nine months that her body is not her own: the state has conscripted her body for its own ends.” Such “forced pregnancy,” she contended, reduces women to “fetal containers” and violates the Thirteenth Amendment prohibiting slavery. Fortunately, the USSC gave no credence to these radical and ridiculous arguments.
In 2005, then-Senator Hillary Clinton (D-NY), an avowed abortion supporter, gave a speech calling for policy changes so abortion “[did] not ever have to be exercised or only in very rare circumstances.” In response, Johnsen alleged that Senator Clinton had taken a “step in the wrong direction” by arguing for such policies. Instead, Johnsen believes “[p]rogressives must not portray all abortions as tragedies.”
Further, despite USSC decisions upholding the constitutionality of informed consent laws with 24-hour reflection periods, parental involvement laws, and bans on partial-birth abortion, Johnsen opposes them and continues to argue they are not constitutionally permissible. For example, in a 2006 op-ed opposing Justice Samuel Alito’s confirmation, she argued that opposition to all restrictions on abortion—not just acceptance of Roe v. Wade—should be a litmus test for judicial nominees. To Johnson, “[t]he notion of legal restrictions as some kind of reasonable ‘compromise’—perhaps to help make abortion ‘safe, legal, and rare’… proves nonsensical.”
Critically, Johnsen and Solicitor General Kagan will be in positions to argue against the constitutionality of laws regulating or restricting abortion—including those laws the USSC has previously determined to be constitutional and which are supported by a majority of Americans—and negatively influence the actions and positions of the White House and other Executive Branch departments.