License to kill?
As a senator, John Ashcroft backed a Missouri bill that might
make killing an abortion provider justifiable homicide.
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Jan. 18, 2001 | The campaign for Sen. John Ashcroft's seat
in the U.S. Senate probably began in earnest after the late Mel Carnahan, Missouri's Democratic governor and Ashcroft's
would-be opponent, vetoed a controversial bill known as the Infant's Protection Act. Proponents touted the act as a ban on
late-term, or so-called "partial-birth," abortions, and from his bully pulpit on the floor of the U.S. Senate, Ashcroft made hay
off his rival's veto.
During an October 1999 speech in support of the Partial Birth
Abortion Act, which he co-sponsored with Sen. Rick Santorum, R-Penn., Ashcroft said: "Tragically, the Missouri
partial birth infanticide bill was vetoed despite its overwhelming passage by the bipartisan Missouri General Assembly." This
had followed a previous statement Ashcroft issued in April 1999, according to the St. Louis Post-Dispatch, calling on
Carnahan to "sign this important bill." Later, during his failed campaign against the late Carnahan (whose widow, Jean, has
taken his Senate seat after he was killed in a fatal air crash in October), Ashcroft launched a radio ad that attacked the
governor, saying he had "vetoed a ban on partial-birth abortions."
But what Ashcroft, President-elect Bush's
nominee for attorney general, didn't mention was that the Infant's Protection Act allows
the use of force against abortion providers -- perhaps even deadly force -- to stop any
illegal abortion. Moreover, the bill leaves unclear just what
constitutes an illegal abortion.
Even the bill's author, Louis DeFeo of the
Missouri Catholic Conference, initially agreed that the bill allowed deadly force
against abortion providers, saying, "I think that's justifiable in protecting a person." (The bill effectively
defines a fetus as a person.)
As Carnahan put it in his veto statement at the time: "Perhaps
most outrageously of all, this bill will allow someone to legally
commit acts of violence, including a lethal act against a physician, nurse or patient, in order to prevent a termination of
a pregnancy by a procedure which the attacker reasonably believes would be a violation of this bill."
Moreover, Carnahan wrote, the bill was drawn in such a way
as to "ban some of the safest and most commonplace first- and second-trimester abortion procedures."
Carnahan's veto was overridden by the Legislature in an effort
led by a member of his own party. And Ashcroft immediately began lauding the veto override at Carnahan's expense. "It is an
incredible accomplishment," Ashcroft told his fellow senators. "It represents only the seventh veto override in Missouri
history, the third override this century, the first override since 1980." (Translation: Ashcroft suffered no overrides during his
two terms as Missouri's chief executive.)
A day after the override, Planned Parenthood of Missouri went
to a federal court and won an injunction against enforcement of the law, arguing that it criminalized most common abortion
procedures. The injunction remains in effect as Planned Parenthood's legal challenge to the law continues.
"Of all of the different versions of these bills, [the Infant's
Protection Act] was the most egregious assault on reproductive rights of any of them -- even going so far as giving a defense to
those who might engage in violence," says Kate Michelman, president of the National Abortion Rights Action League
(NARAL). "It was an extraordinary bill. And Ashcroft supported it
fully."
Now, as Ashcroft tries to assure his critics that his own
partisan political views won't inappropriately influence the job of the nation's top law enforcer, the question emerges:
Did Ashcroft, a staunch abortion opponent, condone the potentially
extreme ramifications of the bill? Ashcroft, like other Cabinet nominees, is not taking questions from the media, and the Bush
transition office did not respond to requests for a comment. Supporters of the bill claim it offers no protection for potential
abortion-doctor killers. But opponents dispute that. At first glance, the Infant's Protection Act simply appears to be
a particularly punitive version of a conventional "partial-birth" abortion ban, one in which a doctor who performs the
procedure and the woman who engages the doctor to perform it could be charged with infanticide, or second-degree murder
of a "living infant." But the "living infant" described in Missouri
law could be a first-trimester fetus. In the Infant's Protection Act, a "living infant" is defined as "a human child, born or
partially born." Prior case law sets the precedent for the use of the word "person" to include "unborn child or children," cited in
one statute to mean "the offspring of human beings from the moment of conception until birth at every stage of biological
development."
The act also gives new meaning to the terms "born" and
"partially born." According to the bill, the "infant" -- embryo, fetus or actual baby -- can be "partially born" even while inside
a woman's body, so long as the head has cleared the cervix. This could, potentially, include abortion procedures used at all
stages in a woman's pregnancy.
Though the bill makes an exception for "legal
abortions," the law itself does not spell out what those might be, and it appears to
simultaneously outlaw most procedures previously deemed legal.
But the most confounding statement of the
Infant's Protection Act is one that may seem to be the most innocuous: "Nothing in this
section shall be interpreted to exclude the defenses otherwise available to any person
under the law including defenses provided pursuant to chapters 562 and 563, RSMo."
That first chapter cited a criminal defense for a person who has
used force against another under conditions of duress "because he was coerced to do so, by the use of, or threatened imminent
use of, unlawful physical force upon him or a third person." The key phrase here is "third person," which under Missouri law
could be construed to apply to a fetus. Likewise, the other statute cited allows a person to use physical force -- even
deadly force -- if "he reasonably believes that such deadly
force is necessary to protect himself or another against death."
Sam Lee, director of Campaign Life Missouri, who helped
DeFeo write the bill, contends that the inclusion of these statutes in the Infant's Protection Act is actually intended to
shield doctors, allowing them to perform an illegal abortion (in this case, employing "deadly force" against the fetus) if it is
necessary to save the life of a pregnant woman (in this case, the "third person.") Reproductive rights advocates ridicule this
claim, pointing out that the Infant's Protection Act already exempts physicians from criminal liability if the procedure is
performed "to save the life of the mother during pregnancy or birth."
For his part, DeFeo acknowledges that these particular statutes
were included to allow for the use of force against medical personnel to stop an illegal procedure, but he claims that the
law only bans late-term, dilation-and-extraction abortions. In a televised debate with Carnahan a week before the veto
session, DeFeo asserted that the statutes demand that any defense used to stop a banned procedure "must not exceed the
bounds of what's necessary in order to stop the action," according to a report in the Jefferson City News Tribune.
Exactly what constitutes "what's necessary"? DeFeo, a lawyer,
went on to give examples of acceptable use of force to stop doctor from performing a proscribed abortion: "pinning his
arms to his side or knocking him to the floor." However, backing away from his earlier statement, DeFeo contended, "In
no way would anyone be able to use deadly force as a lawful defense." Ironically, Carnahan was prepared to sign a "partial-birth"
abortion bill. In his veto statement on the Infant's Protection Act, Carnahan wrote, "I have said repeatedly that I would sign
a bill banning 'partial birth' abortions (assuming it included an exception to safeguard the mother's health). Unfortunately, the
legislature chose not to send me such a bill." He went on to carefully lay out his objections, ending with the bill's final
section, the provision for "defense of others."
Despite Carnahan's oft-repeated promise to sign a more
narrowly drawn "partial-birth" abortion ban, Ashcroft used Carnahan's veto of the Infant's Protection Act to tar the
governor throughout the Senate campaign. In one of his direct-mail fundraising letters, sent to potential donors in
November 1999, Ashcroft wrote, "My opponent, Mel Carnahan, is one of America's leading advocates of partial birth
abortion."
By March 2000, Ashcroft had refined his
message in a later direct-mail missive: "Mel Carnahan has been a leading figure fighting
to keep the barbaric partial birth abortion procedure legal, while I've been a leading
sponsor of the Partial Birth Abortion Ban in the U.S. Senate."
In the summer months leading up to the
election, Ashcroft was airing radio spots that took Carnahan to task for commuting the
death sentence of a triple-murderer at the behest of the pope, comparing the commutation to Carnahan's veto of the infant protection act.
"The pope opposes partial-birth abortion," says a woman in the spot.
"But Carnahan refused to show mercy for innocent life," an
angry male voice replies.
The ad goes on to note the largesse bestowed on Carnahan's
campaign by reproductive rights groups, calling the governor "the top recipient in the nation of money from Planned
Parenthood and the National Abortion Rights Action League."
"Innocent victims suffer," says the woman.
"But to Mel Carnahan," the man chimes in, "it's all politics."
On the law's provision for the defense of the fetus by deadly
force, Ashcroft had little, if anything, to say. (This reporter's search came up empty.) Yet it would be hard for him to deny
familiarity with the text of the one-and-a-half page bill. In his October 1999 speech, he notes that the language of his own
Senate Partial Birth Abortion Ban differs from that of the Missouri law. As the former attorney general of the Show-Me
State, one would assume that he understood the references to the "general liability" and "defense of others" sections of
the criminal code.
Though Missouri's Infant's Protection Act remains under
injunction by U.S. District Judge Scott O. Wright, last month state Judge Robert H. Dierker Jr. of the St. Louis Circuit took
on the interpretation of the law at the request of the federal court. It took Dierker 54 pages to
conclude that the law prohibited only late-term partial-birth abortions, and that the
law would not allow for lethal force against abortion providers. Privately, reproductive rights advocates refer to his opinion as
"a mess"; publicly, some, like Paula Gianino, president of Planned Parenthood of the St. Louis Region, prefer to term it
"an interim opinion," and plan on waiting for clarification.
The case is now back at the federal appeals court, and Planned
Parenthood has filed a motion to amend Dierker's judgment. Should this law or another like it make its way to the U.S.
Supreme Court, says Michelman, it would be up to Ashcroft, should he be confirmed, not only to enforce it but to interpret
the court's decision for other government agencies.
salon.com
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About the writer: Adele M. Stan is a regular contributor to
IntellectualCapital.com and the Washington correspondent for Working Woman magazine.
Please read my own related article: The Medical Facts About Abortion