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Bush's spoils: reproductive freedom

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© St. Petersburg Times
published April 28, 2002

Women's bodies and freedom have often been considered a spoil of battle. Legend has it that in the eighth century B.C. the Romans abducted and raped the Sabine women so they could bear the children for a new society. Bosnian Serb war criminals used rape as a tool of terror against female Muslims, intending to impregnate them.

Our society is much more genteel about these things. In the United States, women's reproduction and who controls it is decided by courts and legislatures, not armies. The 2000 presidential election -- which had women's reproductive freedom in its crosshairs -- ended in George Bush being declared the victor, and to the victor go the ovaries.

Bush is now systematically putting in place judges who will encourage state controls on women's bodies. U.S. District Court Judge Jay Zainey is just one example.

In February, Zainey was confirmed by the Senate by a vote of 92 to 0 as a judge for the Eastern District of Louisiana. Zainey's confirmation was considered uncontroversial even though he had been the former chair of Louisiana Lawyers for Life, an antiabortion group commited to "the legal protection of human life, born and unborn."

It didn't take long after taking up the gavel that Zainey chose to implement his personal views on abortion rather than follow the dictates of law.

Victoria W., as she was pseudonymously known, was imprisoned at the Terrebone Parish Criminal Justice Complex in Louisiana for a probation violation. When she discovered she was pregnant she contacted prison officials informing them she wanted an abortion. That request was not honored. Instead, in what appears to be a deliberate attempt to keep her from exercising her constitutional rights, she was told she would need to hire an attorney and obtain a court order before being allowed to terminate her pregnancy, not something she was able to do. By the time she was released from prison she could no longer obtain a legal abortion in Louisiana.

With the help of the Center for Reproductive Law and Policy, Victoria W. sued officials at the prison claiming an intentional violation of her reproductive freedom rights as well as her right to receive medical treatment while incarcerated. If she could prove her allegations, Victoria W. should have easily won her case based on the judgments of prior courts.

But Zainey, the judge assigned to her case, didn't even bother waiting for the trial. He dismissed all of Victoria W.'s claims outright with a terse three-page order in which he indicated that, at some point later on, he would produce a full opinion.

As Linda Rosenthal, Victoria W.'s attorney, noted after the ruling, "no federal court in the country has ever held constitutional a prison policy that intentionally obstructed a prisoner's right to terminate her pregnancy."

Until Zainey, that is. And Zainey's antiabortion bona fides are widely shared among Bush picks for the federal bench:

While a deputy solicitor general in Ronald Reagan's Justice Department, Judge Carolyn Kuhl, a nominee to the U.S. Court of Appeals for the 9th Circuit, urged the U.S. Supreme Court to revisit Roe vs. Wade and overrule it. John Roberts Jr., who has been nominated to the D.C. Circuit, also fought vociferously to limit abortion rights while in the Justice Department. Lavenski Smith, nominated for a seat on the 8th Circuit, once sued an Arkansas state hospital facility on behalf of the "Unborn Child Amendment Committee" in an effort to ban all abortions performed at the facility. And Judge Michael Mills, confirmed last year to a district court in Mississippi, ruled in a dissent while still a justice on the state's Supreme Court, that an antiabortion protester who was convicted of trespassing at an abortion clinic should have been able to defend herself by saying her actions were necessary to save unborn lives.

Examples involving other nominees are too numerous for one column.

If you are looking for the long-term legacy of Bush vs. Gore, this it is. The raiding of the Social Security Trust Fund to pay for Bush's tax cuts and the degradation of the environment under Bush's pro-business, antiregulation policies, can be repaired by future administrations. But packing the federal judiciary with jurists who believe the state can force a woman to become an incubator, will resound for generations.

We saw this coming of course. Women voted solidly in favor of Al Gore partly as a form of self-defense. When Bush was made president, we expected our reproduction to be conscripted by the new guys in charge. It is what so often happens to women on the losing side.

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