The Boston Rescuer
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". . . knowing that in the Lord your labor is not in vain." — 1 Cor. 15:58

Ashcroft: "I am personally opposed to abortion. But…"

John Ashcroft is the U.S. Attorney General. His background is that of a strong pro-lifer—but he did, as a senator, vote for F.A.C.E. and for the special bankruptcy law exclusion, which singled out pro-life activists as ineligible to avoid payment of fines by declaring bankruptcy. In his U.S. Senate confirmation testimony he offered pro-life verbiage, but betrayed the cause by promising to do nothing official to oppose abortion or defend the unborn. Instead, he claimed he would "vigorously" prosecute pro-lifers who violate F.A.C.E., etc. In addition, he would not advocate challenging Roe v. Wade, even if new justices were appointed to the Supreme Court.

Other developments regarding A.G. Ashcroft:

JUNE 28, 2002 -- More details on the arrest of Rev. Pat Mahoney in Washington, D.C., in consequence of A.G. Ashcroft's injunction.

JUNE 25, 2002 -- Regarding Pat Mahoney's arrest in front of the D.C. Planned Parenthood on 6-20-2002, the ACLJ received a copy of a "Notice Pursuant to Court Order" that U.S. government has filed.  They say that they are in the process collecting and reviewing all materials about his Pat's arrest last Thursday, and should they conclude that he violated the order they will "apply for a finding of violation and recommend an appropriate penalty"!

JUNE 17, 2002 (WASHINGTON DC) — In January of this year the US Attorney General, John Ashcroft, was granted a federal injunction against Rev. Patrick Mahoney and six other pro-lifers to keep them off the public sidewalks near DC abortion clinics. This order was issued as hundreds of thousands of pro-lifers are traveling to Washington DC for the 29th annual March for Life.
    A similar injunction was brought by Janet Reno and the Clinton Administration, but that injunction was thrown out by the 2nd Circuit Federal Court of Appeals. Now Ashcroft has asked for and received a 20-foot stay-away order, slightly modifying what Reno did. — Gary McCullough.  Full article . . .
Justice Department Let-Down — Focus on the Family.

JUNE 12, 2002 'Gay' Pride celebration at the Justice Department! (The Washington Post) -- "We're Here! We're Career!"

APRIL 9, 2001 — Peculiar Priorities on Ashcroft's Agenda: Attorney General aloof from conservatives; meets with homosexuals.  Article in April 9, 2001 New American. 

APRIL 5, 2001 — Robert Novak column (4-5-01) on John Ashcroft, "once the lion of the right," now "the lamb of the center."

Partial transcript of Senate confirmation hearing testimony (emphasis added by editor):

SENATOR ASHCROFT: Another issue merits specific mention in these opening remarks, and that is the issue that we would identify with the case of Roe v. Wade, which established a woman's constitutional right to an abortion. As is well known, consistent with Republican United States attorneys general before me, I believe Roe v. Wade, as an original matter, was wrongly decided. I am personally opposed to abortion.

But as I have explained this afternoon, I well understand that the role of attorney general is to enforce the law as it is, not as I would have it. I accept Roe and Casey as the settled law of the land. If confirmed as attorney general, I will follow the law in this area and in all other areas. The Supreme Court's decisions on this have been multiple, they have been recent and they have been emphatic.

I have been entrusted with public service for more than 25 years. It's a responsibility I have honored and a trust that, I believe, I have kept. During those years, I have not thought of myself as a public servant of some of the people, but a keeper of the public trust for all the people. If I become United States attorney general, I, again, commit to enforcing the law, all of the law for all of the people.

I appear here today as a man of faith, a man of common sense conservative beliefs, a man resolutely committed to the American idea. On occasion, some of you have disagreed with my views. You have done so respectfully, and I thank you. In turn, I hope that my disagreements with you have reciprocated your respect.

But whether we are conservatives or liberals, religious or secular, Republicans or Democrats, what we have in common is far greater and more important than what divides us. As Americans, we live under a Constitution, uniting us under a rule of law, a Constitution that allows us to live side by side in harmony, working for the mutual interest of all Americans and our communities.

It is indeed adherence to the rule of law that is the basis of our democracy. Never in the history of the world has any country so thoroughly dedicated itself to respecting laws, for it is in respecting laws that we respect the individual dignity and freedom of people. Nowhere in government is thorough obedience to the rule of law more powerfully evident and more urgently necessary than at the Department of Justice.

If I am fortunate enough to be confirmed by the United States Senate and to become the next United States attorney general, I pledge to you that strict enforcement of the rule of law will be the cornerstone of justice.

As a man of faith, I take my word and my integrity seriously. So when I swear to uphold the law, I will keep my oath, so help me God.

LEAHY: The senator from Iowa, Mr. Grassley, I am told by Senator Hatch, is in another confirmation hearing, where he’s questioning the witness, and so we will turn to the senator from Pennsylvania, Senator Specter.

SPECTER: Thank you, Mr. Chairman.

Senator Ashcroft, I didn’t realize how important this hearing was, until it was scheduled hear in the Senate Caucus Room. We haven’t been here since Justice Thomas and Judge Bork. This is a very famous room for major matters. It’s the room where President Kennedy announced for president back in 1960, so it’s a commentary on the importance of the hearing.

Permit me to go to a key issue on the choice issue, a woman’s right to choose, and concerns which have been expressed about your enforcing the law, which I thought you stated very positively yesterday, and move to the area of prosecutorial discretion where there is substantial leeway for an attorney general, or even a district attorney, as I was for many years, dealing with the prosecutors’ discretion on what cases to prosecute and how to handle them.

And what I think many Americans are looking for, beyond your assurance that you will enforce the law, is your commitment to exercise your discretion to carry out the intent of the law on a woman’s right to choose within the confines of existing law, which you have promised to support.

One of the votes that you cast that I thought was particularly significant was the one in the bankruptcy context; interesting that it should have an application to a woman’s right to choose. But when protesters blocked abortion clinics, there have been some very substantial verdicts handed down, one in excess of $100 million.

And when that issue came before the Senate, you voted that those individuals who had those verdicts against them would not be permitted to have a discharge in bankruptcy.

What assurances can you give, Senator Ashcroft, that your discretionary calls as attorney general will be to enforce the intent behind existing law on a woman’s right to choose?

ASHCROFT: Well, any constitutionally protected right is an important right. And I think people who interfere with the exercise of constitutionally protected rights should be the focus of attention by prosecutorial authorities.

It’s my understanding that there are anticipated several dozen cases a year in terms of the violence or obstruction or coercion around abortion facilities or other reproductive health facilities. And I would think that it should be the responsibility of the attorney general to be able to respond aggressively in every one of those situations.

SPECTER: Well, if you say aggressively, that is a good assurance. Aggressive has a well-accepted meaning. I like aggressive prosecutors.

Let me pinpoint the issue on constitutionality of the statute—the freedom of access to clinic entrances. There have been some 24 cases which have challenged the constitutionality of the act under the First Amendment and the Commerce Clause, and all 24 of these cases have been decided favorably to the constitutionality of the act. The job of the attorney general, just like the job of the district attorney or state attorney general, is to uphold the constitutionality of the act, and I note you’re nodding in the affirmative. Would you commit to the attorney general’s generalized responsibility to support the constitutionality of existing legislation, like the freedom of access to clinic entrances?

ASHCROFT: Let me just say that I would support the constitutionality of the act. I don’t believe there is a First Amendment right to coercion and intimidation. I think that’s the clearest thing I can say. When people say that this act interferes with their First Amendment right, I don’t think that’s what the First Amendment provides.

The First Amendment does not mean that you have the right to intimidate a person who is exercising their constitutional rights. The First Amendment doesn’t provide you with the right to violate the person, and safety and security of an individual in that respect. So I will vigorously enforce and defend the constitutionality of [F.A.C.E.]—of course, that’s my responsibility.

When this Senate acts and makes a determination through enactment signed by the president that something should be the law, that places a very high level of responsibility on the attorney general to carry that out.

SPECTER: Let me move to freedom of religion, Senator Ashcroft, an area, again, where substantial concern has been expressed. There have been many quotations of your speech at Bob Jones University on, "We have no king but Jesus." And I view that as a personal comment which you have made. We all have our own views on religion. And the question is not what John Ashcroft or Arlen Specter hold as religious views, but whether the sacrosanct provisions of the First Amendment on freedom of religion will be maintained or enforced, and the attorney general has a very vital role there.

Political speeches frequently contain a lot of references to religion. This happens on both sides of the political aisle, and some of us may not do it and some of us may. But political speeches are one thing and personal views are another, but the most important factor is the enforcement of the law.

Now, I note that, as attorney general of Missouri, you had acted to prohibit the distribution of religious materials on a campus. And what I would like to know is your determination, putting aside your own views, your resoluteness to enforce the sacrosanct provisions for freedom of religion of the First Amendment, and perhaps if there are other instances that you could show, in addition to that one where you stop the distribution of religious material on a campus.

ASHCROFT: Well, first of all, I am committed to the right of individuals to worship freely in accordance with the dictates of their own conscience or not to worship at all. And I will work assiduously to defend that right for all Americans.

The phrase, "We have no king but Jesus," was a representation of what colonists were saying at the time of the American Revolution in a number of instances. And it became a bit of a rallying cry when people came to collect taxes on behalf of the king of England, and the American colonists would respond with that phrase.

I was putting in that speech in context the idea that the ultimate authority of the ultimate idea of freedom in America is not governmentally derived. It basically went to something that was reflected when Thomas Jefferson wrote the Declaration of Independence. He didn’t write: We hold these truths to be self-evident, that all men get from government equality...

SPECTER: Senator Ashcroft, because of limited time...

ASHCROFT: Sure.

SPECTER: ... would you pinpoint what you did specifically as attorney general of Missouri in not permitting religious matters to be handed out on campus?

ASHCROFT: Well, the question was raised about whether Christian groups could distribute Bibles on school grounds. And the Missouri Constitution happens to be even more adamant about church and state, and requiring separation far more clearly, even than does the U.S. Constitution. And I looked at the Constitution and these groups, obviously, were groups that I had some favor for, but, obviously, the law has to be followed.

I simply...

SPECTER: Did you stop the distribution of those...

ASHCROFT: I issued the opinion that indicated that distribution was unlawful.

SPECTER: And what did you do?

ASHCROFT: Well, distribution ceased based on that.

SPECTER: Let me move to Supreme Court nominations. Senator Ashcroft, President-elect Bush has already said that he would not employ a litmus test on pro-choice, pro-life on Supreme Court nominees. On this panel, many of us who are pro-choice have supported candidates for the Supreme Court who were known to be pro-life, and many senators who vote pro-life have supported nominees who have been known to be pro-choice.

To the extent that you have any rule in the selection of Supreme Court nominees, would you make a commitment not to employ a litmus test on the pro-choice, pro-life distinction?

ASHCROFT: I have not had a substantial discussion with the president-elect of the United States about my role in terms of judicial selection. I know the Constitution allocates clearly the appointment authority to the president. I know that he has indicated that he would not have a litmus test, and I believe that in my service to him, it would be important that I reflect that clear indication of his, that no litmus test would exist.

SPECTER: So you would make a personal commitment not to apply a litmus test to Supreme Court selections to the extent that you may be involved in that?

ASHCROFT: To the extent that I have the authority, I’m going to do—I’m going to work with the president and his framework for developing Supreme Court justices. The answer is clear: No litmus test. I think he stated that clearly and that would be my position.

SPECTER: Your position as well. OK.

FEINSTEIN: Thank you very much, Mr. Chairman.

Senator Ashcroft, I must tell you, I am deeply puzzled by what I heard yesterday and what I hear today. I’m one that believes that, in political life, of which you’ve been part for 25 years, it’s very hard to change your stripes or change your spots.

And I see a kind of metamorphosis going on, a mutation, if you will, that somebody who has been really on the far right of many of the issues about which senators have spoken today or yesterday—civil rights, a woman’s right to choice, certainly guns—is now making a change. And, quite frankly, I don’t know what to believe.

I’d like to confine my questions to choice and to guns.

You have a long history of vigorously criticizing the pro-choice position.

In 1998 you wrote, "If I had the opportunity to pass but a single law, I would ban every abortion except those medically necessary to save the life of the mother."

In 1983, while you were attorney general, you told the Missouri Citizens For Life annual convention that you would not stop until and amendment outlawing abortion is added to the United States Constitution.

When you spoke at the National Right to Life committee’s annual convention, you said, and I quote, "The Roe decision is simply a miserable failure, and I hope that the Supreme Court announces it is overturning the Roe decision and giving back to the states the right to make public policy." While governor in 1989, you declared the 16^th anniversary of Roe v. Wade a day immemorial for aborted fetuses.

So you have in fact been an implacable foe of a woman’s right to choose for a quarter of a century. You have supported legislation and even a constitutional amendment that would define life at the beginning of fertilization, which would not only criminalize all abortions and take away a woman’s right to reproductive freedom and choice, but would also outlaw and criminalize many forms of the most common birth control options.

I frankly don’t know what to believe. You said of Bill Lann Lee, one of the reasons you voted against him was because he had the kind of intensity, and I quote, "that belongs to advocacy, but not with the kind of balance that belongs to administration." And I might respectfully say the same thing about you and your record.

I want to ask you some specific questions.

We talked in my office about a rape exception, and let me ask this question: Each year more than 32,000 women become pregnant as a result of rape, and approximately 50 percent of these end in abortion. Given the circumstances surrounding any rape, and certainly a resulting pregnancy, can you tell us why you feel there is no need for a rape exception to a ban on abortion?

ASHCROFT: Thank you for your question. I understand these are deeply held views of yours, and my opposition to the aborting of unborn children has been a deeply held position of mine. I have sought in a number of ways through the years to reduce and to curtail the abortion of unborn children, and I understand that reasonable people do differ on these things. And that’s been not only my understanding, but it has been a basis for my seeking to act in concert with people to cooperate to move toward a variety of different ways to reduce the level of aborting unborn children in our culture and in our society.

I have voted on numerous occasions for rape and incest exceptions and have voted for much broader exceptions than that. One time when I was governor I proposed that we only ban second abortions or abortions for second or third times. We banned abortions for racially mixed children, because people were wanting to abort a child for being racially mixed, or we banned abortions for sex selection.

So I think it’s fair to say that, over the course of my time in office and with the prerogatives I’ve had as a public servant, I have adopted a variety of positions to try and reduce the number of children being aborted.

I think it is also fair to say that I know the difference between an enactment role and an enforcement role. During my time as a public official, I have followed the law, and my following of the law has been clear.

When I was the attorney general of the state and pro-life groups wanted to insist on the publication of abortion statistics for particular hospitals and they asked that those abortion statistics be published, I went to the law, and a fair reading of the law didn’t allow for the publication of those statistics which could have made those hospitals the target for pro-life forces. I followed the law in saying that I would not force the state or rule that the state had to publish those statistics when I think the law was clear that it shouldn’t.

So I have a record of being able to say, I know the difference between enacting the law, the debate about the law. My involvement in legislation has, very frankly, in recognition of the law, centered, in real terms, on trying to do things like get parental consent and other things like that. Those are the kinds of things which I have focused on; the ban on partial birth abortion.

But I will enforce the law fairly and aggressively, firmly. I know the difference between the debate over enacting the law and the responsibility of enforcing the law, and that’s been clear in my record as a public servant.

FEINSTEIN: Will you maintain the Department of Justice’s task force on violence against health care providers and give it the resources it needs to continue?

ASHCROFT: There have been, I think, three different task forces in this respect. I will maintain such task forces and provide them with the kind of resources that they need in order to make sure that we don’t impair the constitutional right of women to access reproductive health services.

FEINSTEIN: Will you, 100 percent, investigate and prosecute activities that block the entrances to facilities where abortions are performed, even if the conduct is nonviolent?

FEINSTEIN: When you said yesterday that Roe was a settled question, does that indicate that you accept this adjudication and that you will use all of the elements of your office to support it?

ASHCROFT: I believe that both Roe and Casey and, I guess, is it Stenberg—is that the most recent case that related to the Nebraska statute?—are settled law.

In the application for certiorari, I think on the Stenberg case, there was a request by one of the parties that Roe be reconsidered. The Supreme Court has signaled very clearly it doesn’t want to deal with that issue again.

I would say that I do not want to devalue the currency of the solicitor general of the United States by taking matters to the Supreme Court on a basis which the Supreme Court has already signaled: "We don’t want to deal with, and were unwilling to deal with."

I think, you know, the solicitor general of the United States has some standing and prestige in the United States Supreme Court, and to consistently go back to the court, insisting that the court do what the court has indicated that it doesn’t want to do, devalues the ability of the solicitor general in other matters. It not only is thus a losing proposition, but it is counterproductive as it relates to the ability to succeed on other issues in the Justice Department. And therefore, accepting Roe and Casey as settled law is important, not just to this arena, but important in terms of the credibility of the department.

SCHUMER: Well, thank you, Mr. Chairman, and thank you Senator Ashcroft.

You know, Senator, I sit here and listen to the hearing, and my jaw almost drops. Senator Ashcroft believes Roe v. Wade is the settled law of the land. Senator Ashcroft believes that the assault weapons ban should be continued.

You know, Senator, we fought a lot of these battles in the Senate over the last two years. Where were you when we needed you?

Anyway, let me ask a few more of these specifics to flesh out some of these because they are very important.

The first question is: When did the law become settled—I guess, in your mind, I guess. In 1998, you introduced, along with Senators Helms and Smith, a resolution calling for an amendment to the U.S. Constitution to ban abortion, even in the cases of rape and incest. And the amendment would also outlaw several of the most common contraceptive methods. In that same year, you said: "As a legal matter, the absence of any textual foundation"—this is a quote—"for the trimester framework established in Roe has resulted in an abortion jurisprudence that is marked by confusion and instability. It demonstrates the dangers of building a legal framework on the quicksand of judicial imagination rather than the certainty of constitutional text."

So I guess the first question that gnaws at me some is: In your testimony you said it was settled law, and yet fairly recently you were fighting hard to change it, to overturn it—a position I disagree strongly but respect your view on it.

Can you explain the evolution in the belief?

ASHCROFT: Thank you for the question. We do disagree on this and, obviously, this is one of those questions upon which I believe reasonable people can disagree.

Frankly, if the law weren’t settled, one wouldn’t need a constitutional amendment to change it, if one were wanting to change it. And so the fact that I’ve proposed a constitutional amendment indicated to me that it’s not something that’s going to be adjusted in another way. And in so doing, that was part of a role that I had as a member of the Senate as an enactor of the law, rather than an enforcer of the law. There are lots of settled laws and there are constitutional amendments designed for the specific purpose of overturning settled laws.

I think the court has been signaling an increasing—and this makes reference to—I’m forgetting which of the members of the panel asked me earlier. But in its most recent case the court signaled it denied certiorari for reconsideration. And I think the Supreme Court has said—that’s the Stenberg case, I believe.

SCHUMER: That’s what I think, too.

ASHCROFT: It said, we don’t want to be bothered with this. Frankly, I think it is not wise to devalue the credibility of the solicitor general in taking things to the court, which the court considers settled. And that’s why I explained my other answers the way I did.

SCHUMER: I appreciate the answer.

ASHCROFT: I just want to indicate that if you think I have changed to believe that aborting unborn children is a good thing, I don’t. But I know what it means to enforce the law, and I know what I believe the law is here, and I believe it is settled.

SCHUMER: So let me ask you this just to follow up. So if the solicitor general came to you, and you were attorney general, and said, "I’d like to argue a case to overturn Roe"—for instance, in the Nebraska case, in the Stenberg case, I think it was Justices Thomas and Scalia who, in dissent, it was just a 5-4 case, encouraged more cases to overturn the law. Would you urge the solicitor general or would you not allow the solicitor general, who would be under your jurisdiction, to bring such a case?

ASHCROFT: I don’t think it is the agenda of the president-elect of the United States to seek an opportunity to overturn Roe. And as his attorney general, I don’t think it could be my agenda to seek an opportunity to overturn Roe.

SCHUMER: And would that apply if, let us say—because that was a 5-4 decision, the Nebraska case, the Stenberg case—but let us say one of our Supreme Court justices stepped down and a new appointment was made and it was at least speculated or viewed that that new justice and a different—and one of the justices who stepped down would be one of those in the five majority—that this new justice would have a different view, would have sided with the dissent. Would you still urge the solicitor general to not bring the case?

ASHCROFT: Well, as I said before, I don’t think it’s the agenda of this administration to do that. And as attorney general, it wouldn’t be my job to try and alter the position of this administration.

SCHUMER: Let me ask you a second one related. Let us say that Governor Thompson becomes the secretary of HHS and he seeks your legal advice on banning stem-cell research, research where we’ve had great divisions about, but research extremely important to hundreds of thousands of people and their families with Parkinson’s Disease and other diseases. Would you urge Governor Thompson, but then Secretary Thompson, given that Roe v. Wade is settled, to continue to allow stem-cell research to continue?

ASHCROFT: I will provide him the best assessment and instruct the Department of Justice to provide him with the best assessment of the law as it exists, upon which he can base a decision within the parameters of the statutory framework guiding his activity.

SCHUMER: But pursuing that a little, sir, if I might. If you believe Roe is settled and certainly stem-cell research would fall within the confines of the first trimester, then wouldn’t your advice have to be to continue stem-cell research? And why couldn’t you tell us that here today?

If not, then I would like to know what "Roe being settled" means.

ASHCROFT: The way I answered the question a moment ago is the way I want to answer it again, but I’ll answer it in these words.

I will be law-oriented and not results-oriented. I will—that’s my pledge as I move toward the attorney general’s office, and, of course, I can’t make good on—I don’t want to be presumptuous. I understand that there is a confirmation process. But I will provide my best advice regarding the law, including the law as expressed by the Supreme Court in Roe v. Wade.

SCHUMER: So, if—just to pursue it a little bit further—and I’m just trying to flesh things out here. I’m not trying to put you on the spot. These are issues of great importance to so many of us.

If the legal opinion, the predominant legal opinion, was that stem-cell research was allowed, was part of the settled law of Roe, that would be your guiding light here, not an ideological belief that we shouldn’t allow it?

ASHCROFT: I will give them my best judgment of the law, and, if the law provides something that is contrary to my ideological belief, I will provide them with that same best judgment of the law.

SCHUMER: OK, I’ll—I don’t think I can push you any further, although I wish the answer would be a little clearer, but…

ASHCROFT: I’m just not going to issue an opinion here.

SCHUMER: I understand.

ASHCROFT: I will, with all deference, I just want to say…

SCHUMER: I made it hypothetical that, if the law would agree.

Let me go to another one. The president asks you advice whether rape victims should be allowed the right to choose. It comes up in some context that we probably, you know—I don’t want to, I don’t think it’s necessary for the purposes of this question to outline the context—would you advise him that rape victims should continue to be allowed their right of choice even though, ideologically, you would be opposed, because, again, Roe is the settled law of the land?

ASHCROFT: If he’s asking me for legal advice, I will provide him with my best judgment. It will not be results-oriented; it will be law-oriented. And I will also answer the president in private, as he has requested me to do.

And I don’t want to be less than cooperative, but I don’t want to try and go through a list of all the potential questions the president might ask me and try and tell in advance someone other than the president what answer he’s going to get.

SCHUMER: Right, but the reason—and I understand that and appreciate your desire to do that. Of course, though, when you say Roe is the settled law of the land, that has lots of different implications that would be quite contrary to the advocacy views that you had while you were United States senator. We would agree to that, right?

ASHCROFT: Well, it’s very clear to me that the settled law of the land protects rape victims. I mean, it’s clear that the settled law of the land gives virtually anyone any opportunity they want to have an abortion. I mean, it’s an unrestricted right. And I would advise him in that respect as to what the law is.