Wednesday, October 19, 2005

The Weekly Standard on HM's opposition to Roe v Wade

Terry Eastland of the Weeky Standard weighs in on Harriet Miers' record on Roe. Eastland rightly realizes the questionnaire makes it highly unlikely that Miers has any sympathy for Roe v. Wade. But he leaves out an important part of Miers’ record.

In 1987 HM was associated with Girls Inc; a Dallas group that officially supports Roe v Wade. While it is possible that HM was unaware or unsupportive of Girls Inc’s position, it is much more probable that in 1987 she supported Roe v Wade.

Texas Justice Nathan Hecht has recounted the story of HM's conversion to the view that life begins at conception in the late 1980s. This story has received new documentation from the news that HM supported a Human Life Amendment in 1989. The questionnaire from Texans for Life does not directly address the specific question of Roe v. Wade. Consequently, it is possible in principle that HM converted to the view that a Human Life Amendment was appropriate, but did not change her view that Roe was correctly decided.

Three things, however, make this unlikely. One is simply the rarity of this position anywhere in the political spectrum. There are numerous people who think that abortion is morally wrong, and yet support Roe: Kennedy, Souter, and O’Connor seem to fall into this class. But I have never personally met anyone or read the writings of anyone who supports a ConAmendment to ban abortion who doesn’t also think that Roe was wrongly decided. Every individual who supports a ConAmendment to ban abortion seems also to believe that Roe was wrong. On this point, HM’s closest link is to Michael McConnell, the only judge on any short list who is on record favoring a ConAmendment to ban abortion; and who also has sharply critized Roe—among other places in a famous article declaring Roe to be still illegitimate after 25 years.

A second reason is that Louise Raggio, her close friend and feminist, told reporters that in 1989 HM was opposed to Roe v. Wade. It is possible that Raggio is mistaken or that the reporters misunderstood her—but it is far more likely that Raggio’s account of HM’s opinions is correct.

A third reason is that Justice Nathan Hecht, who has known HM quite closely, has told reporters that HM sees abortion as involving the balancing of two equal lives—a direct repudiation of Roe’s viability criterion. There is no space here for a complete discussion of Hecht’s interviews with the press; but suffice it say that he has never denied discussing Roe with Hecht, although he has sometimes given less than fully detailed answers to whether or not she would reverse it.

Consequently, there is every reason to believe that Miers is the first nominee to SCOTUS since Robert Bork to be for most practical purposes on record rejecting Roe.

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