Sen. Brownback Holds Hearings on Roe
WASHINGTON — A woman who was used to make abortion legal nationwide told a Senate subcommittee about how she was deceived by the lawyers whose help she had sought.
“I only sought legal assistance to get a divorce from my husband and to get my children from foster care,” said Sandra Cano, testifying publicly for the first time since her 1973 Supreme Court case — Doe v. Bolton — helped abolish state abortion regulations.
“Abortion never crossed my mind, although it apparently was utmost in the mind of the attorney from whom I sought help. At one point, during the legal proceedings, it was necessary for me to flee to Oklahoma to avoid the pressure being applied to have the abortion scheduled for me by this same attorney.”
Cano, who at the time was poor and whose husband was in jail, said she had always opposed abortion. She never did kill her child. But her court case ultimately defined the “health of the mother” as an expansive concept including physical, emotional and psychological well-being, effectively ensuring that abortion could not meaningfully be regulated at any stage of pregnancy or for any reason.
With its companion case, Roe v. Wade, it established the unprecedented basis for an inviolable right to abortion on demand.
“Doe v. Bolton was based on lies and deceit,” said Cano. “I want the case which was supposedly to benefit me to be either overturned or retried.”
Cano was speaking at a June 23 hearing on Capitol Hill chaired by Sen. Sam Brownback, R-Kan., on the effects of the seminal Roe and Doe decisions. Brownback plans to hold three or four such hearings during this Congress, which could be a monumental two-year period in the history of abortion law.
The first hearing came just a week before Supreme Court Justice Sandra Day O'Connor's surprise announcement that she is retiring, setting off a pitched battle over whether her replacement should be a jurist who believes in preserving Roe or not.
Although the emotion-charged hearing drew a huge audience, the mainstream news media nearly blacked the event out altogether. Based on a search of the Lexis-Nexis database, only four news stories were published on the hearing, and the Los Angeles Times was the only major newspaper to cover it.
‘Based on Lies’
In the hearing, Norma McCorvey — known as Jane Roe of Roe v. Wade — described her court experience. It was hauntingly similar to that of Cano.
“Abortion is a shameful and secret thing,” said McCorvey, breaking into tears as she spoke. “I made the story up that I had been raped to help justify my desire for an abortion. Why would I make up a lie to justify my conduct? Because abortion is based on lies.
“Abortion is not a simple medical procedure that is safer than childbirth,” she continued. “It is the killing of a human being. It produces severe psychological and emotional consequences. We can ask the children to forgive us, but the children are dead.”
Both women described how they were misled and kept in the dark by lawyers about the meaning and progress of their court cases, and how they were never allowed to testify in court.
Brownback, a staunch opponent of abortion, told the Register that he held the hearings in order to promote awareness of the flaws in the current regime of court-ordered legal abortion on demand.
“I hope judges will pay attention to the testimony,” said Brownback. “How do you celebrate such key cases when they're built on lies?”
Another of the hearing's seven witnesses, Ed Whalen of the Washington-based Ethics and Public Policy Center, testified on Roe as a constitutional legal matter, calling it a “lousy” decision.
Whalen told the Register that Roe is best compared to another infamous decision of long ago. “Roe and Dred Scott are the only cases in which the Supreme Court has distorted the Constitution to deny American citizens their power to extend basic protections to an entire class of human beings,” he said.
Dred Scott v. Sandford, decided prior to the Civil War, held that slave owners’ property rights overrode the ability of free states to completely forbid slavery within their own borders.
At one point, Brownback asked Dr. Ken Edelin, who testified at the hearing in favor of Roe, when he believes life begins.
“It began with the union of the sperm and the egg,” said Edelin. “It has a different genetic makeup and it is living. And if you would rather pass laws that would protect that over the lives and experiences and health and bodies of women, then that is what you will do in this body in all your wisdom.”
Edelin would not, however, go so far as to state that an unborn child is a human being, Brownback noted.
“That a child is alive in the womb but not a life is a legal fiction,” Brownback said. “Of course it's a life.”
The hearing provided a forum for discussion of the nation's most compelling social issue between two possible presidential candidates — Brownback and Sen. Russ Feingold, D-Wis., the subcommittee's ranking Democrat and a strong supporter of abortion on demand.
“The Supreme Court's decision in Roe v. Wade was indeed consequential,” said Feingold in his opening statement. “It has brought about steady and far-reaching improvements for the health and welfare of women in this country. … Roe has played a significant role in allowing women to participate fully and equally in the economic and social life of this nation.”
Another witness for the pro-Roe side was Alta Charo, a professor of law and medical ethics at the University of Wisconsin Law School. Charo said that an unborn person cannot be considered a “person” under the 14th Amendment to the U.S. Constitution.
“There is a difference between biological life and life that is morally and legally significant in a way that requires protection, including a so-called right to life,” she testified.
Charo, who serves on an advisory board for Planned Parenthood, the world's largest provider of abortion, said that she did not consider the hearings all that significant.
“Sen. Brownback's hearing isn't going to influence the court particularly,” she said. “My personal opinion is that Sen. Brownback wants to be visible on this issue with his base, possibly for [presidential] primary voters. … It's not clear to me that it has any intrinsic value.”
In her testimony, Charo painted a dramatic picture of what a post-Roe society would look like. She suggested that without the “right to privacy” created by Roe, a Chinese-style, one-child policy could be enacted, contraception — including, she said, the “rhythm method” — could be outlawed, and the state could begin disassembling parental rights, including the choice of their children's “language of instruction” in school.
But Brownback dismissed this portrayal as a wild exaggeration.
“It's standard procedure for people who oppose Roe to instigate panic over its reversal,” he said. “But we once had a society without Roe, and none of the things she described ever happened.”
David Freddoso writes from Washington, D.C.
- July 17-23, 2005