Copyright © 1997 AFLM
May/June, 1997 Volume XII Number 6 - DEPARTMENTS
News Notes (continued)
Magazine debates "legitimacy" of U.S. Government
Washington, D.C. -- There's talk of revolt in the air, of civil disobedience and "morally justified revolution" to resist a regime that no longer governs by the consent of the people.
The words echo the long-faded cries of the Founding Fathers, protesters against the Vietnam War, and sound themes from the civil rights movement.
But in this case, they come not from angry young people carrying banners in the streets. The new revolutionaries are a far more stolid bunch, mostly conservative intellectuals convinced that unelected judges have set the nation on a course of moral and political decline.
For them, President Clinton's re-election raised the specter that over his eight years in the White House, he will have a chance to name about half the nation's federal judges.
It's a chilling thought to conservatives already upset because they believe judges have been exceeding their legal authority with decisions such as those upholding the right to abortion, striking down a Colorado referendum that barred local ordinances prohibiting discrimination against homosexuals, and upholding a right to physician-assisted suicide.
The debate over how to deal with Clinton's judicial nominees is exposing a deep fissure among conservatives. People who agree in their criticism of the courts are bitterly divided over what to do about it.
The dispute began with a symposium in First Things, a monthly journal published by the New York-based Institute on Religion and Public Life. With a circulation of only 28,000, First Things existed in relative obscurity until the November 1996 issue, which asked in bright red letters on its cover: "The End of Democracy?" Immediately below in black letters: "The Judicial Usurpation of Politics."
In an introduction written by the journal's editor, Richard John Neuhaus, a Lutheran minister who became a Catholic priest, the theme of the symposium was summed up this way: "The government of the United States of America no longer governs by the consent of the governed."
Court decisions on abortion and others condemned in First Things violate what the authors regard as moral law.
With such decisions, wrote Robert H. Bork, the former appeals court judge whose appointment to the Supreme Court was rejected 10 years ago by a Democratic Senate, judges "order our lives and we have no recourse, no means of resisting."
"Perhaps an elected official will one day simply refuse to comply with a Supreme Court decision," proposed Bork, acknowledging that his suggestion "will be regarded as shocking."
Indeed it was. So shocking that it touched off cries of protest from many customary allies.
Midge Decter, a former distinguished fellow of the Institute on Religion and Public Life, wrote, "I could hardly believe my eyes." The discussion of judicial usurpation was "about nothing less than the legitimacy of the United States government," she said.
The tone, she said, smacked "of careless radicalism."
Gertrude Himmelfarb, conservative philosopher and historian, resigned from the editorial board of First Things and wrote that Neuhaus' contention that the 1990s are a period of revolution comparable to the American Revolution "is absurd and irresponsible."
Liberals are watching from the sidelines and wondering what all the fuss is about.
"The court's activism in the last 10 years or so has been in a conservative direction, for the most part," said David Cole, a professor of constitutional law at Georgetown University. "It has not been conservative enough for people like Robert Bork, who would like to put it to the right of Attila the Hun."
Joel Grossman, a professor of history and law at Johns Hopkins University, said, "Judicial activism is not the property of the left. Judicial activism is part of the way courts function in our society, and basically, judicial activism is what the other guy does that you don't like."
Former Senator Alan Simpson of Wyoming was part of the Republican minority on the Judiciary Committee when President Reagan nominated Bork for the Supreme Court.
Simpson didn't agree with Bork on all issues, but he said the nominee was "one hell of a lawyer, one hell of a teacher and one hell of a judge. ... Before our eyes they turned him into a gargoyle."
What Republicans are doing now, said Simpson, is "payback time."
Caught in the middle is Senator Orrin Hatch, the Utah Republican who chairs the Senate Judiciary Committee and a staunch conservative.
"Too many of our federal judges have proven to be activists," Hatch recently told an audience at the University of Utah. He went on to define a judicial activist as "a judge who exceeds the proper limits of his or her authority."
That view is in line with those most determined to rein in the courts.
But Hatch lost the conservative revolutionaries by declaring his opposition to using the Senate's "advise and consent power to block all judicial appointees whose political views we do not agree with."
Suddenly, the Utah senator is under attack as a tool of liberals.
"Orrin Hatch has been the chief lobbyist for a number of the most liberal Clinton nominees," said Thomas Jipping, director of the Judicial Selection Monitoring Project of the Free Congress Foundation.
"Morning after" use of birth control pills approved
Washington, D.C. -- On February 24, U.S. health officials endorsed the so-called "morning after" pill as a safe way of avoiding pregnancy and urged the makers of certain birth control pills to formally seek approval for such use.
Birth control pills have been legal for years and are used routinely by millions of women to avoid having children. A different dosage of the pill can be used the "morning after" to abort a pregnancy after rape or "unprotected" sexual intercourse.
Once a drug is approved by the Food and Drug Administration (FDA) for a specific purpose, doctors have the discretion to prescribe it for other uses, which is called "off-label use." But the drug cannot be advertised or promoted for those unapproved uses.
In rape crisis centers, emergency rooms and some reproductive clinics, doctors have used the birth control pill as an abortion pill but the FDA move to formally clear it for this purpose would clear up any confusion or hesitancy about its emergency use and should make it more accessible.
The FDA, in an unprecedented move, invited the makers of certain birth control pills to submit the application required to start the approval process. A formal notice appeared in the federal register.
The morning after pill is not the same as RU 486, the so-called French abortion pill, which can cause a miscarriage two months into a pregnancy. However, both are abortifacient.
Approval of a morning after dose of the pill has been controversial because anti-abortion groups consider it a form of nonsurgical abortion. They say it could make women more lax about unprotected sex if they can then run out and get a dose of this drug.
The anti-abortion group Operation Rescue/National issued a warning to pharmaceutical distributors and manufacturers who made the morning after pill available.
"If you participate in the murder of unborn children, regardless of age; we will find you; we will expose you, and we will treat you like any other abortionists," said Jeff White of the group's California operations.
Governor to back judge on Ten Command-ments plaque
Montgomery, AL -- Alabama Gov. Fob James has renewed a promise to use the "full powers" of his office against a possible court order that would prevent a judge from opening proceedings with a prayer.
James indicated on February 6 that he will call out state troopers or the National Guard, if necessary, to protect Etowah County Circuit Judge Roy Moore's religious practices.
Moore is the subject of a lawsuit by the American Civil Liberties Union (ACLU), which claims his session-opening prayers and display of the Ten Commandments over the bench violate constitutional separation of church and state.
Montgomery County Judge Charles Price has ordered an end to the prayers, but says he will allow the Ten Commandments to remain -- at least until he visits Moore's courtroom.
Moore has said he'll defy Price's anti-prayer edict when he convenes his next court session February 24.
After speaking at a legislative prayer luncheon, James told reporters the only way the prayers will stop and the Ten Commandments taken down would be to "run over the state troopers and National Guard. "
ACLU attorney Joel Sogol says the remarks were "out of place."
Sogol calls the idea of using guardsmen to protect Moore's plaques "far fetched," adding he's unaware of anyone planning to storm into the courtroom and take them down.
He predicts if Moore prays in court later this month, he could face a contempt of court citation or investigation by the Court of the Judiciary.
College students "just say no" to sodomites
State College, PA -- A student group whose members refuse to accept homosexuality has won an appeal and will be recognized as an official organization at Penn State University.
The group STRAIGHT, Students Reinforcing Adherence In General Heterosexual Tradition, won its appeal several days before most students headed home for spring break.
The Student Organization Appeals Board said it reversed the ruling of a student court and granted STRAIGHT status as a student organization because the group did not discriminate in selecting members and gave no indication it would violate rules against discrimination based on sexual orientation.
"The appeals board, while believing that STRAIGHT's purpose might be phrased in a more positive manner, which we encourage it to do, nonetheless affirms that a university community should be open to a wide range of conflicting and diverse viewpoints, all of which may be freely expressed," said the board, which is made up of staff, faculty and students.
STRAIGHT has attracted about 50 members since being formed in November by junior Darin Loccarini.
Penn State's Undergraduate Student Government Supreme Court denied the group a charter last month, drawing national attention and prompting threats against Loccarini.
Loccarini, 27, said he was prepared for a court battle before winning the university appeal.
"Most people think that the school does not want us to exist, but I did everything by the book, and they basically had no choice," Loccarini said.
Dale Masel, co-director of the Coalition of Lesbian, Gay and Bisexual Graduate Students, said he agreed that STRAIGHT should be a recognized student group as long as it was not violent.
"Hopefully [sic], instead of arguing about whether or not they can say what they want, we can debate whether or not what they're saying is what's best for our community, and if the things they like to do are really what this university is about," Masel said.
Lifers make license plates
Ocala, FL -- A Florida pro-life group wants to see its anti-abortion message join manatees, Seminoles and space shuttles on the state's automobile license plates.
For a decade, Florida's drivers have had the option of paying an extra $15 for specialty plates that sport endangered animals, team and university colors or club logos, among 38 approved designs. Part of the extra fee goes to support the chosen institution or cause.
Now, a group that opposes abortion wants to see the words "Choose Life" on a specialty plate along with crayon-style drawings of a girl and boy.
5_97 Powell, director of Choose Life Inc., said the idea came from students at a fundamentalist Christian academy in Ocala. The money raised would go to agencies that help women give up their babies for adoption.
"I like to say, 'Sometimes there are good ideas, and sometimes there are God ideas,"' Powell said. "This is a God idea."
Toni Van Pelt, state president of the National Organization for Women, said adoption is not a simple solution and pregnant women often find it a difficult process, both emotionally and physically.
"Many women have horrible experiences," she said.
The tag's sponsors have met state qualification requirements _ they gathered 10,000 signatures and raised $30,000 to offset manufacturing costs in just two weeks. But they missed the deadline for filing their plan and design with the state legislature.
A bill is pending in both chambers of the legislature to waive that
Woman in coma after getting abortifacient
Binghamton, NY -- At the Lourdes Clinic, an 18 year old woman experienced a severe allergic reaction to one injection of the abortifacient Depo-Provera and lapsed into a coma, the Binghmaton Press and Sun reported on March 28. Depo-Provera is an abortifacient form of birth control.
Elizabeth Mason, who delivered a baby and then was given an injection of the 3 month "contraceptive" Depo-Provera, swelled up 70 pounds of bodily fluid within seconds from her 155 pound frame.
Depo-Provera's maker, Pharmacia & Upjohn, dismissed the life threatening reaction as being only one of a few in 30 years of chemical abortion for Depo-Provera. While the drug has had official sanction since only 1992, doctors have used it as an abortifacient "off label" for decades.
Lourdes clinic, a Roman Catholic institution, where the coma occurred, claims it is taking steps to ensure the Church's teaching on contraception and abortion will not be violated again in the future, according to spokesman Kathy Natwin, who is a Roman Catholic nun and Lourdes vice president of mission services.
The hospital is in the Diocese of Syracuse where Bishop James M Moynihan is reported to be "looking into the case" of Elizabeth Mason.
The dilemma posed was that it appears a Roman Catholic institution was doling out abortifacients directly against Church teaching. And this with the apparent approval of the local Planned Parenthood.
Said James B O'Hora, president of Planned Parenthood of Croome and Chenango Counties: "I was encouraged by the fact that they were willing to help someone in need."
Nurses fired for refusing to abort babies
Albany, NY -- Two New York nurses accused a hospital of firing them for refusing to perform abortions, a charge hospital officials denied on February 28.
Deborah Larson and Christine Thornton, licensed practical nurses, filed a lawsuit Thursday in Albany County Supreme Court seeking to regain their jobs at the Albany Medical Center.
In their lawsuit, they claim they gave written notice in October that they would not do abortion procedures because the procedures violated their religious beliefs.
A few weeks later, they were cited for insubordination and then fired, their attorney, Michael McDermott, said.
Hospital officials denied that the two nurses were fired over the abortion issue.
"We have always respected that employees should only do something in good conscience," said hospital spokesman Rich Puff. "The allegations they are making are totally false."
The nurses' lawsuit seeks back pay, benefits and punitive damages. Larson had been employed at the hospital for 21 years and Thornton had been there for 18 months.
Supreme Court's ruling on "floating bubble zones" changes lower court rulings
Washington, D.C. -- The Supreme Court has ordered lower courts to reconsider the validity of a Phoenix ordinance and a Colorado law that restrict the activities of protesters outside abortion clinics.
The lower courts had upheld both measures.
The court's action, contained in two brief orders, was far from surprising. The justices last week bolstered the free-speech rights of protesters outside abortion clinics, ruling they can confront patients on public sidewalks as long as they stay at least 15 feet away from clinic entrances, a condition of the original injunction the high court upheld. Injunctions are only binding on the specific clinics for which they are obtained.
The court said a federal judge went too far when ordering protesters to stay 15 feet away from any clinic patient or staff member, no matter where they were. The justices ruled that the "floating bubble zones" violate protesters' free-speech rights.
The Colorado Supreme Court and the 9th U.S. Circuit Court of Appeals were told to restudy the Colorado and Phoenix laws in light of last week's ruling.
In Colorado, state courts had upheld a law that bars abortion protesters, including so-called sidewalk counselors, from moving within eight feet of anyone approaching or leaving a clinic unless that person grants permission to do so.
The Colorado law, enacted in 1993, applies anywhere within 100 feet of an abortion facility.
In Phoenix, a 1993 ordinance also applies within 100 feet of any abortion clinic, including public sidewalks. The ordinance requires protesters to stay eight feet away from anyone who asks them to back off.
The Colorado law and the Phoenix ordinance were challenged as free-speech violations. The justices had withheld action in both cases while they considered the New York case.
Oregon's assisted suicide law upheld
San Francisco, CA -- On February 27, a federal appeals court threw out a lawsuit challenging Oregon's so-called "Death with Dignity Act," which allows doctor-assisted suicide for the terminally ill.
The 9th U.S. Circuit Court of Appeals said the lawsuit brought by a group of patients, doctors and nursing homes should be dismissed because they lacked standing.
The appeals court ruled doctors and terminally ill patients must allege "concrete and imminent injury" in order to challenge the constitutionality of a state's "right-to-die" statute.
The attorneys that challenged Oregon's Measure 16, the Death with Dignity Act, said the appeals court decision was flawed and vowed to file an appeal.
"There are very strong constitutional arguments against Measure 16," plaintiffs attorney Richard Coleson said. "Those arguments were not considered by the 9th Circuit."
The Hemlock Society USA, a Denver-based organization that supports doctor-assisted suicide, hailed the appeals court decision.
"I hope that we'll see the Oregon law go into effect as quickly as possible so it will be a model for the rest of the country," Hemlock Society Executive Director Faye Girsh said.
Opponents of assisted suicide blasted the ruling.
"The decision demonstrates the urgency of the state of Oregon acting promptly to repeal this misguided and deadly law," Burke Balch, a director at the National Right to Life Committee, said in a statement.
The Oregon Death with Dignity Act was approved by the state's voters in 1994. The Oregon Legislature is currently considering a bill which would refer the issue to voters a second time. Some legislators argue that the original vote _ passed by a very slim margin _ was made while public opinion was still in flux.
The law allowed terminally ill adults who are mentally competent to ask for a prescription for medication "for the purpose of ending his or her life in a humane and dignified manner."
The three-judge panel ordered the district court to dismiss the lawsuit. It did not, however, address the constitutionality of the Oregon law in its ruling.
Pastor loses fight for freedom of religion
San Francisco, CA -- On April 3, a federal appeals court upheld the firing of a minister from San Francisco's Human Rights Commission after he publicly endorsed Bible passages that prescribe death for practicing homosexuals.
The 9th U.S. Circuit Court of Appeals in San Francisco rejected claims by Eugene Lumpkin Jr., a pastor, that his rights to free speech and religious expression were violated when he was removed from the commission in 1993.
Lumpkin claimed, "The homosexual lifestyle is an abomination against God. So I have to preach that homosexuality is a sin."
Then-Mayor Frank Jordon fired Lumpkin, comparing Lumpkin's public statements with advocating violence against homosexuals and saying it was in conflict with his role as a member of the Human Rights Commission.
The court ruled that neither the First Amendment nor the Religious Freedom Restoration Act required San Francisco to tolerate members of the commission who made public statements contrary to the commission's purpose of trying to eliminate prejudice and discrimination.
Lumpkin's statements, the court says, were not simply hostile to the commission's charge, they were at war with it.
In the opinion, Judge William Norris wrote, "When Rev. Lumpkin speaks as a private citizen, he has every right to preach that homosexuality is a sin... but the First Amendment does not assure him job security when he preaches homophobia while serving as a city official."
Children find "babies in boxes" -- abortion clinic "trash"
Chino CA -- An anti-abortion activist said he found it "horrifying" that children playing in a field could stumble upon dozens of aborted babies packed in cardboard boxes.
"I find it horrifying that dead babies could disappear without anyone noticing," Jeff White, state director of Operation Rescue/California (ORC), said in a statement. "It makes me ask, what is happening to the 1.3 million children being killed each year in our nation's abortion clinics?"
Officials at first said 30 babies were found, but coroner's officials later raised that figure to 34.
Coroner's officials were planning today to try to determine if any of the fetuses were at least 20 weeks old, meaning they possibly could have survived outside the womb. That would create the possibility of a criminal investigation, said San Bernardino County Deputy Coroner Gabriel Morales.
However, to date, no California abortionist has ever been charged under the law because most district attorneys consider the law banning abortions after 20 weeks to be unconstitutional.
Children playing in a field discovered the first box on the morning of March 10 west of Highway 71, about 35 miles east of Los Angeles. Sheriff's deputies called to the scene found the other four boxes, each sealed with duct tape.
The babies apparently were in early stages of development. Authorities speculated that they might have come from an abortion clinic, and could have been left there accidentally.
"They do appear to have come from an abortion clinic," Morales said, noting that the babies were packaged in individual plastic containers.