From the witness chair, Sandra O’Connor said that about abortion. What will she do about it from the bench? She didn’t say.
In the wake of Sandra Day O’Connor’s appointment to the U.S. Supreme Court last month, observers were quick to chalk up a major defeat for the right-to-life movement, which presented her only real opposition. But most prolifers see it differently, including J. C. Willke, president of the National Right to Life Committee (NRLC), and a key prolife witness at O’Connor’s hearings before the Senate Judiciary Committee in September. “I think, for the good of the entire movement nationwide, we had an extraordinary opportunity to state our case,” he said.
Frustrated by O’Connor’s steadfast refusal to comment on how she would rule in cases likely to come before the court, prolife activists based their opposition on her voting record in the Arizona legislature, perceived by some to favor abortion. Right-to-lifers drew a parallel with the Supreme Court nomination of G. Harold Carswell in 1970, who was rejected because 22 years earlier he supported racial segregation.
In testimony lasting more than two hours, Willke and past NRLC president Carolyn Gerster framed their position in civil-rights terminology and sought to present it as more than just a single issue. Rather, they viewed it as concern for the handicapped and the elderly as well as the unborn. Sen. Robert Dole (R-Kans.) disagreed that abortion should be a disqualifying issue, and he pointedly asked Willke and Gerster where they were six years ago when confirmation hearings were held for Supreme Court Justice John Paul Stevens.
Gerster, a cardiologist from Phoenix and a neighbor of the O’Connors, replied that abortion became a litmus test “because of the assurance that we were given by the present administration and the platform. It was made a litmus test.” The 1980 Republican party platform promised the appointment of “judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.”
When the vote came, only Sen. Jeremiah Denton, (R-Ala.), abstained. “I can’t assent on hope,” he said, voting “present.” When the frill Senate voted to confirm the appointment, there was not a single dissent.
At the eye of the storm, the first woman justice of the Supreme Court remained calm and articulate throughout 11 hours of sparring with 18 senators over issues and philosophy. Typical of the verbal parrying was a late-afternoon round with Sen. John P. East (R-N.C.), who pressed her to say how she viewed abortion on demand.
O’Connor replied, “I feel that it is a valid subject for legislative action and consideration.… It certainly is an appropriate role for the Congress. I just do not think that it is a proper function for me to be suggesting to you what you ought to be doing.”
O’Connor’s other line of defense came into play as well: “Personal views and beliefs in this area and in other areas have no place in the resolution of any legal issues that will come before the court.”
However, she repeatedly termed abortion “abhorrent,” “offensive,” and “repugnant,” and said, “I am opposed to it as a matter of birth control or otherwise.” These comments, combined with her stated commitment to strict construction of the Constitution, telegraphed signals of sufficient conservatism to mollify such staunch antiabortion senators as Strom Thurmond (R-S.C.), Orrin Hatch (R-Utah), and Paul Lax-alt (R-Nev.).
The Senate’s collective loyalty to President Reagan and its refusal to become perturbed over the abortion issue left the prolife movement in some disarray, despite leaders’ efforts to stay unified. A few prolifers, most notably four Arizona legislators, vigorously came to O’Connor’s defense.
Jerry Falwell, president of Moral Majority, initially termed the nomination “a mistake” and called on “every good Christian” to oppose it. But he backpedaled rapidly to a wait-and-see posture. Falwell steered clear of the Senate hearings, although he was in Washington throughout the three days of testimony.
After the hearings ended, Moral Majority offered its official position: “Because we do not believe the President would knowingly select” a proabortion judge, the organization “has decided neither to oppose nor support” the confirmation. Falwell also leaned heavily on O’Connor’s stated abhorrence of abortion, noting that “the only reason for abortion to be abhorrent is that it is the taking of human life.” Willke tended to agree that O’Connor sent some positive signals to prolife opponents by her choice of language and her reassurance that “the proper role of the judiciary is one of interpreting and applying the law, not making it.”
But to defend the inflexible stance NRLC took, Willke explained that the committee has “an ethical base, not a political one. When people ask ‘why do you keep fighting?’ I say ‘you just don’t understand our movement.’ ”
NRLC let the matter rest following O’Connor’s Senate hearings, but at least one other prolife group remained at bat. March for Life, which sponsored sparsely attended rallies outside the Senate office buildings, sent a flurry of letters to each congressman.
One Washington activist said the impetus for launching a massive drive against the nomination came from constituents, not leaders. Connaught Marshner, who directs a coalition of profamily groups, said, “At the time it happened, we had no choice but to get involved. The grassroots went into orbit. People in the hinterlands said ‘you’e got to do something.’ ”
What rallied the troops was O’Connor’s voting record during her years as an Arizona state legislator. It was selectively analyzed and labeled “proabortion” as the machinery of the New Right kicked into high gear during July and August. But like the blind men and the elephant, O’Connor and her opponents had differing perspectives on the votes in question. Senator Thurmond gave her a chance to defend her positions, and she appeared determined to escape from the proabortion corner into which she was painted.
Of special concern was her position on Arizona House Bill 20, a measure introduced in 1970 to repeal a state law making it a felony punishable by two to five years in prison for anyone helping a person to procure an abortion unless necessary to save the life of the mother. As a member of the Arizona state senate judiciary committee, O’Connor said, “I supported the action in putting the bill out of committee, where it then died in the caucus. I would say that my own knowledge and awareness of the … question of abortion has increased since those days. I would not have voted, I think, Mr. Chairman, for a simple repealer thereafter.”
Other O’Connor Views
The issue of abortion dominated questions and answers between Supreme Court nominee Sandra Day O’Connor and the Senate Judiciary Committee. Here are her views on other issues that surfaced during her confirmation hearings:
• Forced busing. As an Arizona legislator, she requested federal action to terminate forced busing. Her personal view is that it “can be a very disruptive part of any child’s educational program.”
• Capital punishment. She voted as an Arizona legislator to reenact the death penalty, and later she applied it as a trial court judge. “I felt it was an appropriate vote then and I have not changed my mind,” O’Connor stated.
• Women in combat. O’Connor said she has never felt women should engage in combat, if it means on a battlefield rather than pushing a button from a missle silo.
• Juvenile crime. She “would assign a high priority” to juvenile crime prevention. “It seems to me we need to concentrate our efforts at that age group.”
• Prayer in schools. Without stating a position, she said “the Court has indeed restricted the recitation of prayers in the public school system … despite the free exercise clause.”
• Pornography. “The right of free speech does not extend to obscene material,” O’Connor said, noting that the difficulty comes in defining what is “obscene.”
• ERA. In answer to a senator who asked if she would be involved in an effort to promote the Equal Rights Amendment, she replied that it would be “inappropriate” for her to do so.
This was the closest O’Connor came to repudiating a vote, and it formed the basis for some news media accounts to stretch the quote to say she had admitted making a mistake. Five other abortion-related votes cast by O’Connor in her statehouse years came under close scrutiny.
The testimony by Carolyn Gerster, the Arizona physician, against O’Connor was emotionally wrenching because of their past, near-decade close social association. As neighbors in Scottsdale, Arizona, they attend the same Episcopal church, and their sons participated together in Indian Guides. Her voice faltering, Gerster said, “I wish with all my heart that I could support the nomination of this fellow Arizonan.”
Her composure returned as she and Willke matched stride and fielded questions from the Senate panel. This exchange provided the highest drama of the hearings and elevated dialogue on abortion to a new level of frankness and civility.
Willke detailed the effects of the 1973 Supreme Court decision on Roe v. Wade, the landmark case that legalized abortion. Comparing it to the 1857 Dred Scott case, Willke said the court “has ruled that another entire class of living humans were to be reduced to the status of property of the owner—the mother; further that the mother was given the newly created right to privacy, a right that allowed her to have her property—her unborn child—destroyed if she wished.”
Sen. Howard Metzenbaum (D-Ohio) volleyed back with a lengthy statement of his concern “as to what happens to the fabric of our democracy if we are to elect or defeat people … based upon any one single issue. I find something un-American about any particular appointee being judged on the basis of one issue and one issue alone.”
Willke replied, “Only once or twice in a century does an issue raise itself in our society that … strikes so clearly to the very heart of the basis of our society and the basis of the freedoms that this nation has been built upon. I would suggest that the killing of 1.5 million innocent unborn babies a year is such an intolerable evil that it is that once-in-a-century issue.”
Gerster said the prolife movement’s goal remains the same: to pass a Human Life Amendment to the Constitution, which would protect the rights of the unborn, the elderly, and the handicapped. She and Willke have no continuing quarrel with the prolife senators who supported Sandra O’Connor.
“They are still just as prolife as they ever were,” Gerster said. “I pray that they’re right” about O’Connor. For now, she added, “we can do very little else besides wait and see.”
