Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Source Description
These records pertain to the Bush Administration's policies on abortion.
Scholar Source Context
Document identity
localId
286185851
label
Abortion (Webster v. Reproductive Health Services) [2]
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
286185851
contentType
document
title
Abortion (Webster v. Reproductive Health Services) [2]
description
These records pertain to the Bush Administration's policies on abortion.
citationUrl
identifierLocal
45272-005
collections
Records of the White House Office of Counsel to the President (George H. W. Bush Administration)
Lee S. Liberman General Subject Files
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
286185851
coverageEndDate
day
20
logicalDate
1993-01-20
month
1
year
1993
coverageStartDate
day
20
logicalDate
1989-01-20
month
1
year
1989
languages
English
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
fd6c5a9de569e01a
ocrText
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:
45272-005
Folder Title:
Abortion (Webster V. Reproductive Health Services) [2]
Stack:
Row:
Section:
Shelf:
Position:
0
0
0
0
0
Wabsier
6/21/89
Fossibilities:
1.
Roe overturned
Today's decision is a great step forward for assuring
the protection of the unborn. It is also a sign of the
Court's growing confidence in the American people's ability
to make decisions themselves through their legislatures.
2.
Webster upheld, leaves Roe
While I welcome today's Court decision, I continue to
believe that Roe should be overturned.
3.
Missouri statute not unheld; Roe left unshaken
I am disappointed that the Supreme Court has not
accepted our contention that the people, not the courts,
should resolve these issues. We will continue to make this
point to the Court.
4. Delay
Optional topics:
Adoption
Constitutional Amendment
THREE POSSIBLE WEBSTER DECISIONS WITH RESPONSES
(1) Supreme Court upholds State of Missouri statute and
overrules Roe V. Wade.
The decision of the Court represents a landmark step forward
toward protecting the lives of our nation's most vulnerable
humanity--the unborn child. It recognizes that there are two
sets of rights involved in the abortion decision, not just
one, and that our society is founded on respect for all human
life. It reminds us that each one of us has a responsibility
to reach out in compassion to women in crisis due to
unintended pregnancies, and to offer them love and support and
compassionate alternatives to abortion.
Our attorneys are reviewing the decision to determine its
implications for specific HHS programs and policies, so I
cannot comment further until that review is completed.
(2) Supreme Court upholds State of Missouri statute but
affirms or is silent with respect to Roe V. Wade.
I am very pleased that the Supreme Court has upheld the
constitutionality of Missouri's abortion restrictions. I
strongly support efforts by states such as Missouri to ensure
that their citizens' tax dollars are in no way used to promote
abortion or to assist women in obtaining them. Missouri has
exerted outstanding leadership on this issue by taking the
case all the way to the Supreme Court.
I regret, however, that the Court did not go further and roll
back Roe V. Wade. I am a physician and not an attorney, but I
cannot agree with those who say that the U.S. Constitution
guarantees a woman's right to abortion, with no respect for
the rights of the unborn child. The more than 21 million
abortions that have resulted since abortion on demand was
legalized by the Court in 1973 are a national tragedy, most
especially for our medical profession whose very mission is to
protect and heal innocent life.
Our attorneys are reviewing the decision to determine its
implications for specific HHS programs and policies, SO I
cannot comment further until that review is completed.
(3) Supreme Court overturns Missouri statute and affirms or
is silent on Roe V. Wade.
I am obviously very disappointed that the Court did not use
this opportunity to overrule Roe V. wade. Our attorneys are
reviewing the decision so I cannot comment at this time.
32101
-
-
Alix
FYE
D.TWO
TO: AG
FROM: D. RUNKEL
RE: WEBSTER CASE DRAFT STATEMENTS, reflecting SG's changes
A--Roe V. Wade is upheld
"I'm disappointed that the Court has failed to accept our
view in this case. While we accept the court's ruling as the law
of the land, on a personal basis I will continue to strongly
oppose abortion on demand and will work to encourage alternatives
to abortion, including support for adoption services."
B--Roe v. Wade is overturned
"The court's decision today is a victory for those of us who
believe that the issue of abortion is one which should be
resolved, as an initial matter, by the legislative process, which
has successfully dealt with balancing deeply felt moral and
social perspectives on other public health and safety issues.
Obviously, I'm pleased by today's decision."
**** DUJ CMD CTR
033
4033
12/
1989
12:42
C--Further restricts Roe V. Wade, but leaves framework of that
law standing
"Today's decision is welcomed to the degree that it
recognizes that state legislatures have a legitimate role to play
in regulating abortion. Although the court has not taken the
step which I support, that of returning primary responsibility
for this issue to the legislative process, I believe we can take
heart that a majority of the Justices have seen fit to give the
states greater leeway in establishing some limitation on abortion
on demand."
TOTAL D 07
P.01
JUN-21-89 WED 20:03
Nobsler
URGENT URGENT URGENT URGENT URGENT URGENT URGENT URGENT URGENT URGENT URGENT
To:
Lee Liberman, Office of the White House Counsel
FAX 456-2461
Lee, here is some interesting stuff I thought you would like to see.
P.02
JUN-21-89 WED 20:04
SUGGESTED PRESIDENTIAL RESPONSES TO SUPREME COURT ABORTION DECISION
June 21, 1989
The following responses would be appropriate if the Court explicitly
overturns Roe V. Wade, or otherwise makes it clear that the state
legislatures and Congress would regain essentially unrestricted power to
restrict abortion.
1. I applaud today's Supreme Court ruling, which restores to the
nation's elected representatives, the power to protect the right to life of
unborn children.
Today's decision was not a "turning back the hands of the clock," but
rather, a step forward towards a more humane society. The Supreme Court did
not "retreat," but rather, corrected a tragic error. The 1973 Roe
V. Wade decision resulted in an enormous cost of human life, as abortion
has come to be used more and more as a method of birth control. Since Roe
V. Wade, the number of abortions has at least tripled, with over 40% of the
abortions performed each year now being repeat abortions.
2. I believe that most Americans oppose the use of abortion in all but
the most extreme circumstances, and oppose legal abortion on demand. There
have been a number of major national public opinion polls which clearly
demonstrate that about 75% of the American people would favor making abortion
illegal except in specific, extreme circumstances-- and only 2 to 7 percent
of the abortions now performed involve those circumstances.
3. I continue to favor state and Federal legislation which would
protect the right to life of unborn children. I have previously endorsed a
Federal constitutional amendment to prohibit abortion, except in cases of
life endangerment, rape, or incest, and I will consider other types of
P.03
JUN-21-89 WED 20:04
SUGGESTED RESPONSES TO ABORTION DECISION, PAGE 2
Federal legislation as well. We will be studying what the appropriate
Federal role should be. Certainly, at a minimum, we will seek to protect
unborn children within the jurisdictions which the Constitution places under
direct Federal authority, such as the District of Columbia, military bases,
and the like.
4. Penalties: Specific penalties are largely a matter for the
legislatures and Congress to determine. However, I agree with the National
Right to Life Committee and with the pro-life leadership in Congress, that
the penalties are not appropriately directed against the woman who has an
unplanned pregnancy and who may seek abortion. The pro-life movement is
interested in saving the lives of unborn children-- not in being punitive or
retributive towards women. Women were not the targets of prosecution prior
to Roe V. Wade.
5. I believe that pro-life laws are appropriately targeted at
physicians and others who perform or facilitate illegal abortions. Some
states already have criminal penalties on the books, which can now be
enforced again. Other states may now enact such legislation. However, it
very well may be that some legislatures, in addition to or instead of
criminal laws, will authorize civil remedies-- that is, will permit
injunctions to be issued by civil courts to put abortionists out of
business. These sorts of civil remedies have been found to be effective in
curbing certain forms of discrimination on the basis of race and sex, and
they might well be utilized to protect the right to life of unborn children.
6. EXCEPTIONS: The best estimates are that assault rape or incest is
involved in only a fraction of 1% of the abortions performed. I also favor
a narrow exception for cases in which the woman's life is in genuine
jeopardy. There are very few such cases under modern medical practice, but
those rare cases are allowed for in legislation endorsed by the National
Right to Life Committee.
But this "life" exception is a far cry from permitting an abortion whenever
any physician believes that it would enhance the woman's "health." When the
Federal Medicaid program covered so-called "health" abortions, prior to
enactment of the Hyde Amendment in 1976, we paid for 300,000 abortions a
P.04
JUN-21-89 WED 20:05
SUGGESTED RESPONSES TO ABORTION DECISION, PAGE 3
year. The Hyde Amendment permits only "life of the mother" abortions, and
that usually amounts to around 100 a year.
SUGGESTED RESPONSES TO POSSIBLE QUESTIONS:
QUESTION: There have always been abortions. If state legislatures or
Congress restrict abortions, won't that just drive women to back-alley
butchers? How does that represent compassion?
RESPONSE: We have to remember that at least one human being dies in every
abortion. When the Supreme Court legalized abortion on demand, it allowed
the establishment of thousands of full-time abortion mills, so that we now
have at least one million more abortions each year than we did before Roe V.
Wade. One million individual human lives, each one unique and unrepeatable.
Thus, in reversing that tragic decision and allowing legal protection for
unborn children, today's Supreme Court decision will save many lives.
As for illegal abortions, we would not expect to see high numbers of
abortion-related deaths, even if every state prohibited most abortions. In
1972, the year before Roe V. Wade, the Centers for Disease Control reported
39 deaths nationwide related to illegal abortions. (There may have been some
which were not reported, but probably not a great number by 1972. There was
incentive to report such deaths in order to buttress the case for
liberalized abortion laws.) The number of deaths was decreasing every year,
due to constant improvements in treating infection and blood loss.
If abortion is again illegal, some illegal abortions will occur, and some
complications will occur. We have laws against dangerous drugs, but some
people violate them and are injured. That is tragic, but the answer is not
to legalize dangerous drugs, which would result in even greater loss of
life.
In 1976, it was predicted that if public funding of abortions was cut off,
there would be an epidemic of complications and deaths resulting from
illegal abortions. But that did not happen. The CDC later found no
measurable increase in complications or deaths.
P.05
JUN-21-89 WED 20:06
SUGGESTED RESPONSES TO ABORTION DECISION, PAGE 4
QUESTION: Don't you think there will be a political backlash by the 'pro-
choice' majority-- especially from women who've had abortions? Won't this
hurt the Republican Party?
RESPONSE: This involves a very fundamental right-- the right to life-- and
so it's not the kind of issue where my position is shaped by the latest
polls. But, plenty of polls are taken, and I don't see that so-called "pro-
choice majority." I believe that the major public opinion polls clearly
demonstrate that a solid majority of Americans believe that abortion should
be legal only in circumstances which are quite rare, and which account for
only a few percent of all the abortions.
As for women who've had abortions-- many of them have found it to be a very
emotionally scarring experience, and now oppose abortion. For example,
Sandra Cano [con-know], the woman who was the plaintiff in one of the two
cases which legalized abortion in 1973 [Doe V. Bolton, decided the same day
as Roe V. Wade] is now strongly anti-abortion.
QUESTION: Won't we now have a "patchwork" of conflicting state laws? Women
who have money will be able to go to states in which abortion is legal.
Isn't this unfair?
RESPONSE: It's not unfair for the hundreds of thousands of unborn children
whose lives will be saved even under a "patchwork" situation. After all, we
had a "patchwork" in 1972-- the year before Roe-- when 17 states had
permissive laws. And the total number of legal abortions in those 17 states
was about one-third of the 1.6 million abortions we have now. If a
"patchwork" will save a million lives a year, that is very much worth doing.
QUESTION: This was a 5-to-4 decision by the Court to overturn Roe. How
does this reversal, and by such a narrow margin, affect your decision in
filling the next vacancy on the Court?
RESPONSE: I will proceed exactly as I would have if this decision had
not come down at this time. I will nominate jurists who are well qualified,
P.06
JUN-21-89 WED 20:07
SUGGESTED RESPONSES TO ABORTION DECISION, PAGE 5
and who recognize that the function of the courts is to interpret and
enforce the laws enacted by the elected branches of government-- not to
engage in social engineering from the bench.
QUESTION: During recent months, thousands of people have been arrested
in anti-abortion protests at abortion clinics. These people say that they
are trying to prevent babies from being murdered. Since you agree that
abortion takes innocent human life, do you support these protests? Or do
you regard them as extremists?
Response: I am for working through our institutions to change the law.
Now, within our democratic system, there is a place for protests, for
demonstrations. Within certain limits, these are an exercise of First
Amendment rights to free speech.
Of course, violence and willful destruction of property must be
condemned. But if your question pertains to those who have, as I understand
it, adopted entirely non-violent methods-- sit-ins and that sort of thing.
It is called "civil disobedience," and there is a lot of precedent for it in
the anti-slavery movement, in the anti-segregation movement, in the anti-
Vietnam War movement, and so forth.
Now, there are many compassionate and serious-minded people involved
in these protests, including a number of Catholics bishops and other
respected religious leaders-- believes that its non-violent protests will
help to draw public attention to the tragic number of innocent human lives
which are lost every day in these abortion mills, and thereby hasten the day
when the Supreme Court decision will be overturned.
[ONLY IF PRESSED:] I don't condemn those who engage in non-violent
civil disobedience, whether against segregation or against abortion or
whatever, SO long as they are willing to pay the price. People who engage
in civil disobedience-- for any cause-- have to be ready to pay the price.
The laws must be enforced, and as Chief Executive I will enforce them
impartially.
P.07
JUN-21-89 WED 20:07
8
national
RIGHT TO LIFE
Suite 500, 419 7th Street, N.W.
Washington, D.C. 20004-2293 - (202) 626-8800
committee, inc.
MEMORANDUM
TO: NRLC Affiliates
FROM: James Bopp, Jr., General Counsel
Burke J. Balch, State Legislative Coordinator
DATED: June 13, 1989
RE: THE SIX POSSIBLE WEBSTER SCENARIOS
I. Complete Reversal. The Court could effectively overturn Roe
V. Wade, either by declaring there is no constitutionally
protected "right to abortion," and saying that laws prohibiting
or regulating abortion will be upheld as long as they are
rational, or perhaps by saying that states have a "compelling
state interest" in the unborn child from conception and
indicating that this interest justifies prohibition of abortion
except in narrowly defined circumstances.
(The Court is more likely to overturn laws if it decides
they restrict a "fundamental right." Until now, abortion has
been considered such a fundamental right, which means that only a
"compelling state interest" allows legislatures to restrict it.
According to Roe and other past Supreme Court decisions, the
state's interest in fetal life becomes "compelling" only after
"viability," but even then this interest is too weak to let a
legislature prohibit abortions deemed necessary for a woman's
"health." "Health" has been defined so broadly as to include the
harm to mental health from having an unwanted child.
If the Court now decides abortion is not a "fundamental"
right, that will mean only a "legitimate" state interest is
needed to restrict it, and the Court has already said the
government has a legitimate interest in fetal life throughout
pregnancy. So this sort of ruling would probably mean that
states could thereafter prohibit nearly any abortions--perhaps
with the exception of those necessary to prevent the mother's
death.
If the Court decides abortion remains a "fundamental" right,
but holds that the state's interest in fetal life becomes
"compelling" at conception (rather than "viability"), much will
depend on how broad or narrow are the circumstances in which the
abortion right still overcomes the state interest in fetal life.
If the Court holds or suggests that these circumstances are
limited (such as, for example, to instances in which the life of
the mother would be threatened if the fetus were carried to
term), this outcome, for all practical purposes, will be
tantamount to a complete reversal.
1
P.08
JUN-21-89 WED 20:08
If, on the other hand, the Court holds or suggests that
despite a "compelling" interest in fetal life throughout
pregnancy, the "fundamental" right will still supercede the
interest in fetal life in a significantly broader range of
circumstances, this outcome, in practice, will be equivalent to a
modification but not a reversal of Roe and therefore will fall
into scenario II or III.)
II. Mixed Majority with Effect of Substantially Modifying Roe.
A plurality of Justices (the largest number to join a single
opinion on the winning side, but not enough to constitute a
majority) could vote to overturn Roe, while one or more
concurring Justices, who together with the plurality made up a
majority, could vote to uphold the statute under a standard that
substantially modifies but does not completely overturn Roe. For
example, the concurring opinion could say that statutes will not
be subjected to the "strict scrutiny" test (under which only a
"compelling interest" will uphold a statute against
constitutional attack), unless they "unduly burden" the right to
abortion. Or the concurring opinion could hold that states have
a compelling state interest in the unborn child from conception
and indicating that this interest sometimes justifies prohibition
of abortion but that abortion is still protected in broadly
defined circumstances. The effect would be that for the present
the Court had adopted an intermediate standard, but that with one
or more new Justices a complete reversal would be likely.
III. Majority Substantially Modifies Roe. A majority of the
Justices could vote to uphold the statute under a standard that
substantially modifies but does not completely overturn Roe.
This modification could take the forms discussed in II. This
would have the same effect as II, except that there would be no
explicit indication that some of the Justices were prepared to
reverse Roe outright.
IV. Majority Avoids Roe But Upholds Statute. The Court majority
could sidestep the Roe issue for the time being, by stating that
it need not address the continued validity of Roe on the ground
that the provisions of the Missouri statute at issue can be
upheld even under the holdings of Roe and its progeny.
V. Majority Reaffirms Roe But Upholds Statute. The Court could
specifically reaffirm the holdings of Roe and its progeny but
uphold the provisions of the Missouri statute as constitutional
under them.
VI. Majority Reaffirms Roe and Strikes Down Statute. The Court
could reaffirm the holdings of Roe and its progeny, and conclude
that they require the striking of all or part of the Missouri
statute.
NOTE A: DEGREES OF VICTORY
2
P.09
JUN-21-89 WED 20:09
Outcomes I through IV would be significant pro-life
victories. Outcome V would represent progress but would be hard
to call a clear victory. Outcome VI would be a defeat. Although
V and VI are theoretical possibilities, and responses to them are
included as a matter of contingency planning, they are regarded
as quite unlikely.
If I occurs, no one will doubt that the pro-life movement
has been victorious. As the advisory for that scenario details,
we recommend that you avoid wasting precious access to press time
on claiming or celebrating victory and instead stress our
arguments for the task ahead: persuading state legislators and
those who elect them that unborn children ought to be protected,
now that they can be.
By contrast, if II, III, or IV occur, it will be important
to emphasize that we have won a significant victory. The other
side has raised expectations of a complete reversal to such an
extent that there is a danger that if anything short of that
occurs, they and the press will claim that the Court has listened
to the April rally and the voice of the "silent prochoice
majority" and backed off. But we have always said that a step by
step chipping away at Roe is at least as likely as a complete
reversal and that whatever contributes to that will represent a
substantial prolife victory.
NOTE B: DISTINGUISHING BETWEEN RIGHT TO ABORTION ISSUES AND OTHER
ISSUES IN THE COURT'S HOLDING
It is important to understand that the Court could give us a
substantial prolife victory that cuts back on or even completely
reverses Roe while still striking down some portions of the
Missouri statute on grounds not directly related to abortion.
For example, it has been claimed that the Missouri ban on public
counseling for abortion infringes on First Amendment rights and
is unconstitutionally vague. While we believe--and have argued
to the Court--that these claims are wrong, we could lose on those
issues without affecting the Court's ruling on the key underlying
issues concerning the right to abortion. Similarly, with regard
to the Missouri provision requiring tests necessary to determine
fetal weight, gestational age, and lung maturity after 20 weeks,
it has been argued that because no tests exist to measure lung
maturity until significantly later in pregnancy, the provision is
irrational. The Missouri Attorney General has argued that the
law should be interpreted to require only "necessary" tests and
that if a test is impossible, it is not "necessary;" therefore,
the section is not irrational and should be upheld. Again,
however, we could lose on that point without affecting the
significance of a substantial victory on issues concerning the
right to abortion.
The point is that if the Court's ruling strikes down some
provisions of the statute, we should not assume--or permit the
press to assume--that this necessarily means a significant
prolife defeat. The important thing is to focus on what the
Court says about the right to abortion and the countervailing
3
JUN-21-89 WED 20:10
P.10
State interests in the unborn child.
4
P.11
JUN-21-89 WED 20:11
SUBSTITUTE PAGE 5 6/16/89
SCENARIO I: COMPLETE REVERSAL
Advisory. If the Court completely reverses, whether unborn
children's lives are saved will depend on whether state
legislatures act to protect them. If the reversal occurs, it
will give an extraordinary but extremely brief opportunity for us
to try to persuade the American people to press for protective
laws. The great danger for us is the prospect that the press
will devote our precious moments of comment to quotes that
express celebratory jubilation, while our opponents are given the
opportunity to argue effectively why laws making abortion illegal
would be horrible things. However much they might express our
feelings, celebratory comments accomplish nothing toward our
goals; instead, in this scenario they would be counterproductive.
Our expressions of pleasure do nothing to convince, they nurture
complacency in our ranks, and, above all, they allow the press to
avoid conveying our arguments while protesting that they are
quoting us accurately.
To persuade, we must bring the focus to the unborn child who
is the victim of abortion. We must briefly and convincingly
demonstrate that the child is a human being and that abortion
violently takes the child's life. The most effective way to do
so, for a visual medium like TV, is to insist on bringing and
showing photographs of living unborn children and of the dead
baby who is the result of an abortion. Throughout the interviews
in any medium, the facts of fetal development must continually be
stressed.
Statement. "The effect of today's Supreme Court decision is
to pose to the people and legislators of each state the momentous
question of whether we will now act to protect those most
vulnerable members of the human family, children not yet born.
When someone is already pregnant, the only "choice" is how the
baby will come out: alive or dead.
"Abortions kill children whose hearts are beating three
weeks after fertilization, who are moving by seven weeks, and who
have recorded brain waves at 40 days. Unless we act, abortion--
the ultimate act of child abuse-will continue to be legal
throughout the full nine months of pregnancy for any reason,
including sex selection. Abortions are now widely used as just
another form of birth control. Indeed, one half of those
obtaining abortions admit neither they nor their partners made
use of any method to prevent conception. Over 40% of all
abortions are repeat abortions.
"Unless we act, young girls will continue to be sold
abortions without their parents so much as knowing, while fathers
will continue to be completely without any say about the life or
death of their unborn children. Unless we act, women
experiencing difficult pregnancies will continue to face terrible
pressure to consent to the destruction of their children instead
5
P.12
JUN-21-89 WED 20:12
of receiving social support for positive, nonviolent solutions.
"Today's decision removes barriers to protecting unborn
children, but the long, hard struggle to achieve that protection
has only just begun."
Arguments and Brief Answers.
1. Argument: "Women will always have abortions whether they
are legal or illegal; the only question is whether they will die
at the hands of back alley butchers or whether we will keep
abortion safe and legal."
Answer: Pro-abortionist claims that thousands of mothers
died from illegal abortions before Roe are demonstrably false:
official statistics show a total of 39 maternal deaths from
illegal abortions in 1972, the year before Roe was decided. In
the same year, there were 24 maternal deaths from legal
abortions. One must go back to the era before antibiotics to
find maternal abortion deaths in the thousands; since the 1940's,
maternal illegal abortion deaths steadily declined as medical
treatments for abortion complications dramatically improved.
Studies show that since the legalization of abortion began in
1967, the total number of abortions increased from between
100,000 to 200,000 a year before legalization to over 1.6 million
a year today. The year before Roe V. Wade there were 586,760
legal abortions in the United States. They have nearly tripled
since. While there undoubtedly will always be some abortions if
they are forbidden, just as there are rapes and robberies even
though they are outlawed, their number will be significantly
decreased.
2. Argument: "The abortion choice affects a woman's own
body, which she should be able to control."
Answer: The straightforward biological reality is that
abortion destroys another body, the child's. The child's body is
dependent on the mother's body, just as for a long period after
birth the child will be completely dependent for food and
survival on adults, but that dependency does not change the fact
that the child is another human being rather than merely a part
of the mother's body.
3. Argument: "Making abortion illegal will put the
government into the bedroom. Big Brother will intrude into the
most intimate and private details, investigating miscarriages and
throwing women in jail."
Answer: If there is any legitimate role for government,
surely it includes protection of the lives of the weak and
vulnerable. The aim of the prolife movement is not vindictive
retribution, but rather the effective protection of unborn
children from the ultimate act of child abuse--abortion. That
can best be achieved through laws directed at abortionists rather
than women who have abortions. As was almost invariably the case
before Roe V. Wade, investigations and enforcement will be
6
JUN-21-89 WED 20:13
P.13
directed at suspected abortionists instead of those they abort.
As far as women are concerned, our efforts will be concentrated
on assuring the availability of counseling and support to assist
them through difficult pregnancies.
7
JUN-21-89 WED 20:13
P.14
SCENARIO II:
MIXED MAJORITY WITH EFFECT OF SUBSTANTIALLY MODIFYING ROE
Advisory. This scenario and scenario III pose the greatest
difficulty for rapid reaction, since if the Court effectively
adopts an intermediate position between completely reversing Roe
and leaving it untouched, much will depend on precisely what line
the Court draws or suggests. NRLC will attempt to analyze the
implications of any such new standard as rapidly as accurately
possible. State affiliates will be FAXed the results of that
analysis in the second press release, which is expected to be
available within three hours of the time the decision is handed
down. While the analysis is being awaited, the focus of response
to press inquiries should be to stress the importance of the
victory, that this represents a step back from the unbelievably
extreme position on abortion staked out by the Supreme Court from
Roe up through Webster, the promise for the future implicit in
the repudiation of Roe by the concurring members of the majority,
and the important initiatives the pro-life movement will be
taking in the immediate future to capitalize on the new standards
established by Webster.
Statement. "Today's decision is a substantial victory for
unborn children. The Supreme Court has granted significantly
more latitude to legislatures to act to protect some of the 1.6
million unborn children abortion kills each year, children who
have heartbeats at 18 days, who are moving within the womb at six
to seven weeks, and who have recorded brain waves at 40 days.
The decision will provide impetus to efforts to enact laws that
will give the fathers of unborn children the opportunity to argue
in court, on a case by case basis, that their children should not
be killed. Those who will bear the responsibility of child
support because of their joint role in the child's creation
should be given at least some right to argue that their child
should not be aborted. The decision will also spur efforts to
ensure that young girls with a difficult pregnancy are not
deprived of their parents' guidance and counsel before they are
subjected to abortions.
"We are particularly encouraged by the concurring opinion of
several Justices that directly supports a complete reversal of
Roe V. Wade. In today's decision a majority of the Justices have
repudiated the holdings of Roe in part, while a number of them
have signalled they are prepared to go farther. A number of
abortion-related cases are either now before the Supreme Court or
soon to reach it, and we are today given reason to hope that one
or more of them may soon further reduce the residual obstacles to
the ability of state legislatures to act to protect the unborn.
We have a very long, hard struggle ahead in our effort to restore
the most fundamental rights to children not yet born, but the
Webster decision is a major step forward on that journey."
8
P.
JUN-21-89 WED 20:14
SCENARIO III: MAJORITY SUBSTANTIALLY MODIFIES ROE
Advisory. This scenario poses difficulties for rapid
reaction, since if the Court effectively adopts an intermediate
position between completely reversing Roe and leaving it
untouched, much will depend on precisely what line the Court
draws or suggests. NRLC will attempt to analyze the implications
of any such new standard as rapidly as accurately possible.
State affiliates will be FAXed the results of that analysis in
the second press release, which is expected to be available
within three hours of the time the decision is handed down.
While the analysis is being awaited, the focus of response to
press inquiries should be to stress the importance of the
victory, that this represents a step back from the unbelievably
extreme position on abortion staked out by the Supreme Court from
Roe up through Webster, and the important initiatives the pro-
life movement will be taking in the immediate future to
capitalize on the new standards established by Webster.
Statement. "Today's decision is a substantial victory for
unborn children. The Supreme Court has granted significantly
more latitude to legislatures to act to protect some of the 1.6
million unborn children abortion kills each year, children who
have heartbeats at 18 days, who are moving within the womb at six
to seven weeks, and who have recorded brain waves at 40 days.
The decision will provide impetus to efforts to enact laws that
will give the fathers of unborn children the opportunity to argue
in court, on a case by case basis, that their children should not
be killed. Those who will bear the responsibility of child
support because of their joint role in the child's creation
should be given at least some right to argue that their child
should not be aborted. The decision will also spur efforts to
ensure that young girls with a difficult pregnancy are not
deprived of their parents' guidance and counsel before they are
subjected to abortions.
"In today's decision a majority of the Justices have
repudiated the holdings of Roe in part. A number of abortion-
related cases are either now before the Supreme Court or soon to
reach it, and we are today given reason to hope that one or more
of them may soon further reduce the residual obstacles to the
ability of state legislatures to act to protect the unborn. We
have a very long, hard struggle ahead in our effort to restore
the most fundamental rights to children not yet born, but the
Webster decision is a major step forward on that journey.'
9
P. 16
JUN-21-89 WED 20:15
SCENARIO IV: MAJORITY AVOIDS ROE BUT UPHOLDS STATUTE
Advisory. The most important thing to get across in this
scenario is that it represents a significant pro-life victory.
Because of all the hoopla about the possibility the Court would
use Webster to reverse Roe, the press may be inclined to
represent this as a partial defeat for the prolife movement. But
it merely means that the Court did not yet feel itself called
upon to address Roe, and it did uphold a prolife statute that had
been struck down by two lower federal courts. Ironically, we may
be aided in countering this perspective by our opponents, whose
extremism and desire to avoid complacency in their ranks may well
lead them to emphasize the danger to women' abortion rights
inherent in the provisions upheld.
Statement. "Today's decision is a substantial victory for
unborn children. By upholding the key provisions of the Missouri
statute, the Supreme Court has broken a long chain of decisions
in which court after court has leaned over backward to invalidate
virtually any legislation touching on abortion.
"The decision will provide impetus to efforts to enact
further protective legislation. For example, the prolife
movement expects to pursue laws that will give the fathers of
unborn children the opportunity to argue in court, on a case by
case basis, that their children should not be killed. Those who
will bear the responsibility of child support because of their
joint role in the child's creation should be given at least some
right to argue that their child should not be aborted. The
decision will also spur efforts to ensure that young girls with a
difficult pregnancy are not deprived of their parents' guidance
and counsel before they are subjected to abortions.
"Because it was able to uphold the statutory provisions
without reconsidering Roe, the Court saw no need to address its
continuing validity in this case. A number of abortion-related
cases are either now before the Supreme Court or soon to reach
it. Eventually, the Court will have to confront Roe. When it
finally does, we are confident that the decision will be
reversed.
"We have a very long, hard struggle ahead in our effort to
restore the most fundamental rights to children not yet born, but
the Webster decision is an important step forward on that
journey."
10
P.17
JUN-21-89 WED 20:16
SCENARIO V: MAJORITY REAFFIRMS ROE BUT UPHOLDS STATUTE
Advisory. If the majority of the Court specifically
reaffirms Roe, it will be hard to characterize the decision as a
major victory, but it will still represent progress. After all,
the Court will have upheld statutory provisions that were struck
down by two lower courts as unconstitutionally restrictive of
abortion. The impact of Roe's reaffirmation will vary depending
on how many Justices join in it. If, for example, the decision
is 5-4, with 4 Justices voting to strike the statute and reaffirm
Roe, 4 Justices attacking Roe, and the swing Justice reaffirming
Roe but upholding the statute, then it will simply mean that we
must await another Court appointment. If a larger number of
Justices reaffirm Roe, then the situation is, of course, worse
for us.
In any case, it will be important to stress for the press
that the upholding of the statute does represent important
progress.
Statement. "The decision upholding key provisions of the
Missouri statute represents significant progress in the
continuing effort to secure protection for the lives of unborn
children. The Court, while not repudiating Roe V. Wade, has
nevertheless broken a long chain of decisions in which court
after court has leaned over backward to invalidate virtually any
legislation touching on abortion.
"The Court has reaffirmed Roe V. Wade before when it has
been challenged, in the Akron and Thornburgh cases. But the
issue has risen again and again, and it will continue to rise
until, in good time, Roe is finally reversed. Today's decision
will provide impetus, for example, to efforts to enact laws that
will give the fathers of unborn children the opportunity to argue
in court, on a case by case basis, that their children should not
be killed. Those who will bear the responsibility of child
support because of their joint role in the child's creation
should be given at least some right to argue that their child
should not be aborted. The decision will also spur efforts to
ensure that young girls with a difficult pregnancy are not
deprived of their parents' guidance and counsel before they are
subjected to abortions.
"A number of abortion-related cases are either now before
the Supreme Court or soon to reach it. For so long as it adheres
to Roe, the Court will be unable to avoid confronting the
abortion issue in virtually every term.
"We have a very long, hard struggle ahead in our effort to
restore the most fundamental rights to children not yet born, but
the Webster decision represents progress on that journey."
11
JUN-21-89 WED 20:17
P.18
SCENARIO VI: MAJORITY REAFFIRMS ROE AND STRIKES DOWN STATUTE
Advisory. In this situation of a substantial defeat, the
crucial message to the press must be that not even such a
devastating blow will deter or deflect the movement, which will
return again and again for however long it takes to restore
protection to the unborn.
Statement. "The Court's decision today is a shocking one.
It cuts back on even the limited opportunities which taxpayers
had to assure that employees paid with their money and facilities
constructed with their funds not provide or promote what they
know to be the killing of millions of unborn children.
"The Court has reaffirmed Roe V. Wade before when it has
been challenged, in the Akron and Thornburgh cases. But the
issue has risen again and again, and it will continue to rise
until, in good time, Roe is finally reversed. Even after
Webster, there are issues the Court has yet to address. The
question remains: are there any limits to abortion? May
abortions take place under Roe purely for sex selection, even
when near birth, after viability? We fully expect to pursue
legislation that will test this. We also expect efforts to enact
laws that will give the fathers of unborn children the
opportunity to argue in court, on a case by case basis, that
their children should not be killed. Those who will bear the
responsibility of child support because of their joint role in
the child's creation should be given at least some right to argue
that their child should not be aborted.
"A number of abortion-related cases are either now before
the Supreme Court or soon to reach it. For so long as it adheres
to Roe, the Court will be unable to avoid confronting the
abortion issue in virtually every term.
"This is an issue that will never go away until the day when
effective protection is restored for unborn children throughout
the United States."
12
Webster LSL
THE WHITE HOUSE
WASHINGTON
June 23, 1989
MEMORANDUM FOR THE PRESIDENT
THROUGH:
GOVERNOR JOHN H. SUNUNU
FROM:
C. BOYDEN GRAY
COUNSEL TO THE PRESIDENT
CBG Signed"
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.