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These records pertain to the Bush Administration's policies on abortion.
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286185849
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Abortion (Webster v. Reproductive Health Services) [1]
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286185849
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document
title
Abortion (Webster v. Reproductive Health Services) [1]
description
These records pertain to the Bush Administration's policies on abortion.
citationUrl
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45272-004
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Records of the White House Office of Counsel to the President (George H. W. Bush Administration)
Lee S. Liberman General Subject Files
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286185849
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20
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1993-01-20
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1
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1993
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1989-01-20
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1
year
1989
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English
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Originally Processed With FOIA(s):
FOIA Number:
2012-2218-F
2012-2218-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin:
Counsels Office, White House
Series:
Liberman, Lee S., Files
Subseries:
General Subject Files
OA/ID Number:
45272
Folder ID Number:
45272-004
Folder Title:
Abortion (Webster V. Reproductive Health Services) [1]
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THE WHITE HOUSE
WASHINGTON
TO: John P.Schnnity
FROM:
LEE S. LIBERMAN
Associate Counsel
to the President
profficial
-
FYI
-
Transmipt of the
Comment argument ;-
Webster.
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I
Webser
July 3, 1989
Revised 12:47 p.m./FINAL
We welcome this decision and will be studying its implications.
By upholding the Missouri statute, the Court appears to have
begun to restore to the people the ability to legislate
protect ions for the unborn. We continue to believe that Roe
V. Wade was incorrectly decided, and will work for its full
reversal.
Americans obviously differ over the difficult issue underlying
this case--the morality and appropriate legal status of
abortion. Therefore, any decision in this area will stir
strong feelings. Nevertheless, I have confidence that the
American people will continue to express their deeply held
convictions on this subject within the bounds of civility and
our legal institutions.
Websler
THE WHITE HOUSE
WASHINGTON
June 23, 1989
MEMORANDUM FOR THE PRESIDENT
THROUGH:
GOVERNOR JOHN H. SUNUNU
FROM:
C. BOYDEN GRAY
COUNSEL TO THE PRESIDENT
WILLIAM L. ROPER
DEPUTY ASSISTANT TO THE PRESIDENT FOR DOMESTIC
POLICY AND DIRECTOR, OFFICE OF POLICY
DEVELOPMENT
SUBJECT:
White House Response to Supreme Court Decision in
Webster V. Reproductive Health Services
I. ACTION-FORCING EVENT
The Supreme Court has pending before it in the case of Webster V.
Reproductive Health Services the question of the future
constitutional status of abortion. It could decide this case as
early as Monday, June 26, although it may also wait until
Thursday, June 29 or Friday, June 30. This past Wednesday, our
offices convened a meeting to discuss possible Administration
responses. This memorandum grows out of that meeting.
II. BACKGROUND
The Supreme Court is expected to finish its term no later than
Friday, June 30. That means that within the next week, it is
likely to hand down its decision in Webster V. Reproductive
Health Services. That is the case in which the Court has before
it the question whether to overrule, substantially cut back on,
or leave standing its 1973 decision in Roe V. Wade, in which it
discovered that the Constitution protects the right to abortion.
Two days after the election, the Department of Justice filed a
brief in the Webster case urging that Roe be overruled. It
orally argued that position in Court this April. Regardless of
how the Court rules, the Administration's response will be
carefully watched.
2
Traditionally, the White House has not tried to respond
immediately to Supreme Court decisions. There are sound reasons
for this practice. There are sufficient variations in the way
the Court can decide any case that it is almost impossible to
prepare a response in advance that would anticipate all the
possibilities, and an off the cuff response arrived at without
careful study of the opinion in a case and its ramifications for
future cases could be disastrous.
On the other hand, the Administration's position in this case has
been extremely important to a significant part of your
constituency. Because of that, enough people could read sinister
motives into the lack of an immediate response to a decision in
this case that an exception might be warranted. Were we to
attempt to do so on the spot, however, these issues are
sufficiently emotionally charged that any misstep could be
disastrous. For all these reasons, we thought it might be useful
to set out some fairly detailed options for you to consider in
responding to various possible scenarios. If you feel
comfortable making some of these decisions in advance, that might
provide sufficient guidance to allow a response other than "We're
studying the decision."
Accordingly, this memorandum sets out possible Court decisions
and options for how to respond. One thing to remember while
going through this memorandum is that the Court has a choice
between overruling Roe directly or undermining it indirectly over
a period of years.
III. Possible Court Decisions
The Missouri statute at issue places several different kinds of
restrictions on the performance of abortions. Each of these
restrictions is being challenged as a violation of the right
protected by Roe V. Wade.
The Supreme Court can basically do one of four things.
O First, it can overrule Roe and find that there is no
constitutional right to abortion. If it takes that route,
it would then uphold the Missouri statute (except possibly
the provisions challenged on other grounds) as within the
State's power to enact, since the Constitution would no
longer be read as an obstacle. This would leave the States
and arguably the Congress a great deal of latitude to pass
restrictions on abortions in the future.
O
Second, it can decline to address the continuing
validity of Roe on the ground that even if Roe places
limitations on the States' power to regulate abortions, this
statute is well within those limitations. That would also
result in upholding the Missouri statute. It would also
3
leave the States and arguably the Congress much freer to
restrict abortions than they are at present, although less
so than under the first scenario.
O
Third, it can address the continuing validity of Roe,
find that it remains valid, but find that some of the
Missouri statute's provisions are nevertheless
constitutional. That could result in upholding the Missouri
statute in whole or in part. As a practical matter, this
outcome might well be very similar to the second scenario.
Nevertheless, anti-abortion groups might not see it as
providing as much additional leeway, thus requiring the
Administration to address whether it will continue to attack
Roe frontally (which might be the better political course)
or chip away at it (which might be the better litigation
strategy).
O
Finally, the Court can reaffirm Roe and invalidate all
of the provisions of the Missouri statute as in conflict
with the constitutional right to abortion. This would
basically leave present law intact.
We should add that although we state that "the Court" can do each
of these things, it is also possible that there will not be five
votes to do any of these things. The most likely scenario of
that sort is some combination of Rehnquist, White, Scalia and
Kennedy voting to overrule Roe, O'Connor voting to leave it
standing but uphold some or all of the Missouri statute, and
Brennan, Marshall, Blackmun and Stevens voting to strike down the
statute.
Any of the first three options is likely to be viewed as a
victory by the anti-abortion groups. Conversely, the pro-
abortion groups will view anything short of option four as a
defeat, although they may not say so publicly about some forms of
option three.
IV. POSSIBLE ADMINISTRATION RESPONSES
The Administration should be ready with an internal decision
regarding how to respond for each of the four scenarios described
above. That decision should encompass both the contents of the
response and the method of giving it.
A. Court Overrules Roe
Option 1: No immediate response ("We're studying the
decision")
Pros:
4
--
The traditional White House and Department of
Justice immediate reaction to Supreme Court
decisions.
--
Avoids placing the Administration at the center of
the firestorm that will inevitably ensue.
Cons:
--
Would be viewed as an abandonment of the
President's campaign commitment to oppose Roe.
--
Would be viewed as backsliding from the
Administration's litigation position.
Option 2: Express delight at the decision, no opinion
on what future policy on abortion should be
"Today's decision is a great step forward for assuring
the protection of the unborn. It is also a welcome
sign of the Court's confidence in the American people's
ability to make decisions themselves through their
legislatures."
Pros:
--
Consistent with the President's campaign position
and litigation position.
--
Chooses a side on this emotional issue and
therefore helps gain the strong support of an
important combination of constituencies (anti-
abortion groups, evangelicals) in the Republican
Party.
Cons:
--
Places the Administration closer to the center of
what will surely be an emotional and divisive
debate.
--
The anti-abortion position may become a great deal
more unpopular once it has a chance of being
realized through legislation, rather than simply
being an abstraction. (This is obviously a hard
proposition to test)
5
Option 3: Same as above, but add brief expression of
policy view on abortion.
Add at the end of Option 2 answer: "This offers the
American people an opportunity to move away from
abortion on demand. It does not, in and of itself,
place any restrictions on abortions, but leaves the
States free to place those that they see fit."
Pros:
--
Same advantages as Option 2.
--
Takes a substantive position on the underlying
issue (what kinds of abortions should be illegal)
consistent with the President's prior statements
and with the views of a majority of the American
people.
:
Reassures proponents of abortion that there is a
political battle yet to be fought.
Cons:
--
Same disadvantages as Option 2.
--
Involves the Administration immediately in the
merits of the abortion debate.
DECISION:
Option 1
Option 2
Option 3
Other
6
B. Court Does Not Reach Roe, but Upholds Missouri Statute
(Same answer can be used if less than a majority of the
Court reaches Roe and would overrule it, e.g. four to overrule,
one not to reach Roe, and four to keep it in place, with
additional phrase in brackets at the end.)
Option 1: No response for several days. "We're
studying the opinion"
Pros:
--
There are a lot of different ways the Court could
reach this result. Therefore it is hard to
prepare an immediate response in advance that will
definitely work.
Cons:
--
This would lose an opportunity for the President
to claim credit for this outcome.
--
A lot of people will be very interested in whether
the President remains committed to seeking the
reversal of Roe. It would be best to give an
answer to that question as soon as possible.
Option 2: A response sometime during the day the
opinion is handed down.
"My Administration will be studying the precise
implications of this decision. I can tell you that we
are very pleased that the Court has seen fit to restore
to the people considerable latitude to legislate in
this area, and believe this decision is an appropriate
intermediate step. We will continue to seek the
overruling Roe V. Wade [and are delighted that
Justices indicated a willingness to do so]."
Pros:
--
Would be consistent with the President's campaign
commitments and the Administration's litigation
position.
Cons:
--
Pledge to return to the Roe question might seem
divisive.
7
DECISION:
Option 1
Option 2
Other
8
C. Roe Reaffirmed But Statute Upheld
Option 1: No comment for several days ("We're studying
the decision")
Pros:
--
Because of the different forms opinions reaching
this outcome could take, this may be the only
approach actually available.
--
The answer to the question people will be
interested in, whether the President will continue
to oppose Roe in litigation, will have to depend
in part on how the opinion reads.
Cons:
--
Even if this would ordinarily be true about
litigation decisions, this is such an important
political issue that it is worth taking
significant litigation risks over.
Option 2: A response sometime during the day the
decision is handed down, stating that we are partly
pleased and partly disappointed.
"My Administration is studying the decision. I
can tell you that I am very pleased that the Court
upheld the Missouri statute, and is prepared to
interpret Roe to allow state restrictions on
abortion. I am disappointed that it declined to
reconsider that decision.
Pros:
:
Highlights the part of the decision that is a
victory while expressing the disappointment that
opponents of abortion would feel at such an
outcome. That may be as much as people should
reasonably expect in the immediate aftermath of
the decision.
--
Does not present much of a litigation risk, since
it does not commit the Administration to a future
litigation course.
--
A decision of the sort described above would
suggest that the approach most likely to lead to
results in the short term would be to chip away at
Roe, which this option would leave open as a
9
possibility. The Justices might be offended by a
pledge of a frontal assault and be less responsive
in the future.
Cons:
--
Does not address one issue on which even people
without an agenda may expect the Administration to
have a position in advance, what we will do next
on Roe itself.
--
Politically, the Administration might be expected
to commit itself on that issue immediately.
Option 3: Add to 2 an expression of the intention to
press the point in the future.
Same as 2, but add at the end "and hope that it will
see fit to do so in the future, as my Administration
will continue to urge."
Pros:
--
Avoids the political difficulties presented by
failing to include a statement on this point.
Cons:
--
Would lead to claims that the Administration lacks
respect for the rule of law.
--
Might antagonize some of the Justices.
DECISION:
Option 1
Option 2
Option 3
Other
10
D. Roe Reaffirmed, Statute Struck Down
Option 1: No immediate response ("We're studying the
decision")
Pros:
--
Even a decision of this sort could be more or less
bad depending on how it is written.
--
Appropriate response would also depend in part on
the margin of loss. A 5-4 decision might call for
a very different response from a 9-0 one.
Cons:
--
It would be surprising for the Administration not
to express disappointment at a loss of this
magnitude in an ordinary case, let alone this one.
--
Disappointed opponents of abortion would be very
puzzled about why the President did not share
their feelings.
Option 2: Express disappointment at the decision, but
do not describe Administration's future plans
"We're studying the decision. I can say that I am very
disappointed that the Court did not accept our
contention that the people have the constitutional
power to accord some protection to the unborn.'
Pros:
--
Shows that the President cares.
--
Not outside the bounds of decorum in dealing with
Supreme Court decisions to be disappointed that
you lost.
Cons:
--
Any criticism of the Court can lead to charges
that the Administration lacks respect for the rule
of law.
--
Any criticism of the Court could be taken
personally by the Justices voting in the majority
and held against the Administration in the future.
--
Does not address the Administration's plans with
respect to Roe in the future, which could leave
11
some opponents of abortion feeling that the
Administration has not gone far enough.
Option 3: Express disappointment at the decision, and
state an intention to continue to challenge Roe
Add to the previous answer: "We will continue to make
this argument to the courts. "
Pros:
--
Is the most that anyone could expect the
Administration to do.
--
Failure to go this far might leave opponents of
abortion uncertain that we are serious and
accordingly unhappy.
--
Could be a useful signal of our seriousness to
Justices voting with us.
Cons:
--
Would certainly lead to loud accusations of
lawlessness on the part of the Administration.
--
Might jeopardize the Administration's credibility
with the Court in other cases.
DECISION:
Option 1
Option 2
Option 3
Other
12
V. OTHER ISSUES CONNECTED WITH THE RESPONSE
In addition to the question of what to say, there is the question
of who should say it and in what context. The options appear to
be a live Presidential statement, a statement by Marlin
Fitzwater, the release of a prepared statement, a statement by
the Attorney General, or some combination of these. Depending on
what decision the Court reaches, a different option for who
should give the response might also be appropriate.
VI. OTHER ISSUES LIKELY TO ARISE IMMEDIATELY
(This portion of the memorandum is informational only.)
Unless the Court both reaffirms Roe and strikes down the statute,
other issues resulting from the decision are sure to arise
requiring your prompt attention. The most significant of these
is that various legislators will undoubtedly introduce new
federal legislation and will want your support. For example,
Congressman Smith plans to introduce legislation forbidding
abortions in federal enclaves except to save the life of the
mother. There may be other legislative proposals that will go
even further. We recommend that you assign somebody the task of
developing a position on these questions.