ACLU v. Unborn Children

Mary Meehan

 

In its early days in the 1920s, the American Civil Liberties Union (ACLU) was a small but feisty group. It saw itself as a little guy, fighting for the civil liberties of other little guys defending labor organizers, Communists, and other unpopular and unwanted people. During the Second World War, it fought for Japanese-Americans who were banished from the West Coast and sent to internment camps. It was early and strong in the battle against racial segregation, in both the North and the South.

Today it claims over 275,000 members, has an annual budget of $45 million, and boasts an endowment of $30 million.  It has fifty-one affiliates and staffed offices covering every state as well as the District of Columbia and Puerto Rico. It has over 100 staff attorneys, a foundation, and a lobbying office in Washington, D.C.¹ No longer a little guy itself, it still says that it favors the underdog. The powerless and the despised have been the ACLU’s most frequent clients, ACLU activist Samuel Walker has said, for the simple reason that they have been the most frequent victims of intolerance and repression. ²

When it comes to one group of victims, however, the ACLU fails to live up to this self-image. In its long and relentless campaign against the right to life of unborn children,³ it has violated its own traditions and principles in a radical way. 

Here the champion of the defenseless turns the power of government against the most defenseless human beings. The defender of equal rights supports a two-tiered view of humanity, with those on the lower tier having no rights at all. The defender of free speech helps ensure that millions of human beings will never have a chance to speak.

In other cases, the ACLU insists on the Fifth and Fourteenth Amendment guarantees against being deprived of life, liberty, or property, without due process of law. It is no accident that life is mentioned first in this phrase, as it is first among the rights listed in our Declaration of Independence. The right to life underlies and sustains every other right we have. Yet the ACLU fights against it for the smallest and weakest of human beings.

How and why did these contradictions develop? The organization’s own archives, located at Princeton University, tell much of the story.⁴ Some files there are not yet open to researchers; but enough information is available to show that the ACLU’s abortion policy was shaped by dedicated lobbying on the part of a few leading ACLU members, who carefully chose the terms of the debate. By using emotional appeals, selecting and often distorting statistics, and evading discussion of evidence about the humanity of the unborn, they enlisted their powerful group the side of abortion.Yet there has been internal dissent from ACLU abortion policy from the beginning.  Appeals to the organization’s basic principles especially equal protection of the laws might lead more ACLU activists to question that policy.

Flawed from the Start

Dorothy Kenyon lawyer, feminist, and veteran ACLU board member was trying to persuade the organization to fight abortion restrictions as early as the 1950s. She did not succeed; but attorney Harriet Pilpel took up the cause at a 1964 ACLU conference. Pilpel was an able lawyer and a strong personality; she was devoted to the cause of birth control and population control,  including abortion. Her law firm represented the Planned Parenthood Federation of America, and she did most of the work on that account. At some point Pilpel also became interested in eugenics, probably under the influence of the president of Planned Parenthood, Dr. Alan Guttmacher, who was also vice president of the American Eugenics Society. Eugenics is the effort to breed a better human race, partly by suppressing the birthrate of the handicapped, the poor, and minorities. 

At that 1964 ACLU conference, Pilpel showed some interest in the right to life but only the life of the mother. She asked: Does it not unconstitutionally deny a woman life, liberty and the pursuit of happiness, for example, if despite her wishes and the opinions of concurring doctors she is forced to bear a child she doesn’t want and, objectively, shouldn’t have? In a footnote Pilpel suggested that a woman shouldn’t bear a child who had been injured by the drug thalidomide while in the womb  and would likely be  born with missing limbs.⁵

If those who favored the destruction of thalidomide babies had to explain their position to Tony Melendez, they would have a hard time. Melendez, a thalidomide survivor who was born without arms, did not let that keep him from learning how to skateboard, play pool (wedging the cue stick between shoulder and chin), or swim like a fish (on his back). A composer and singer, Melendez plays the guitar with his toes. He has recorded several albums and performed for many audiences in the United States and abroad. Celia Yette is another thalidomide survivor who was born without arms. She uses her feet and toes to do everything from cooking to dialing a telephone to typing on her computer.  She has earned two university degrees. But it was a shock for her to go from the warmth of her family to the staring and even hostility of some strangers.  Yette found that such behavior hurt a whole lot. ⁶ (Fourteen years after Pilpel’s report, an ACLU board member urged that a way to turn around the tide against us would be to assert the right of women who suffer health defects or whose fetuses would be so defective as to be a hardship on the parents. But another board member, although reliably pro-abortion, observed that it would be difficult to obtain the support of parents of retarded children in a lobbying effort which works against the creation of retarded children. She thought that the parents would not be in a position psychologically to defend a pro-choice stand on this ground. ⁷)

In her 1964 paper, Pilpel also suggested that restricting birth control and abortion breeds and perpetuates conditions of delinquency and crime by encouraging the multiplication of births among low income groups. ⁸ Ironically, at the very time she said this, the ACLU was deeply involved in the civil-rights movement, defending the rights of low-income African Americans.

The 1964 conference did not immediately accept Pilpel’s recommendations, but it did call for a study of the constitutionality of abortion laws. In 1966 an ACLU staff member said the organization had farmed this research out to our Southern California affiliate which has a Committee working on the problem, but so far has not come up with a final report.  I don’t think that we should wait any longer for them, in view of the growing interest and demand for action on this subject. ⁹

Pilpel on the Warpath

Pilpel, meanwhile, had testified before a New York legislative committee that was considering bills to loosen restrictions on abortion. Speaking on behalf of the New York Civil Liberties Union, an ACLU affiliate, she suggested that abortion be viewed simply as a health problem and left to doctors’ discretion. Severely restricting abortion, she said, placed an enormous economic burden on the country. She estimated that each year’s cohort of unwanted children could cost the public $17.5 billion to maintain. Having impressed the legislators with that figure $17.5 billion was a huge sum of money in 1966 she then acknowledged that viewing unwanted children solely in monetary terms is simplistic, as well as callous. What, then, was her higher ground? It seemed to be that an unwanted child suffers from his parents’ attitude toward him.

Pilpel complained that poor and minority women suffered a dispro-portionate number of deaths from illegal abortions. As in her 1964 report, she expressed special concern that women be able to obtain abortions if their unborn children would probably be defective. She acknowledged, but quickly discounted, the argument that the unborn have a right to life.¹⁰

The Numbers Game

As the ACLU’s Due Process Committee developed an abortion policy for consideration by the group’s national board, it used working papers collected by ACLU staff. The paper written by William Kopit and Harriet Pilpel contained two serious errors which misled the ACLU at a critical time and have been widely circulated since then, thus misleading many other people as well.¹¹

Writing in 1965, Kopit and Pilpel suggested that there were between 1 million and 1.5 million  illegal abortions in the United States each year, and over 8,000 maternal deaths from those abortions each year.  While no one knows precisely how many illegal abortions there were before Roe v. Wade, there are various indications that Kopit and Pilpel’s numbers are seriously inflated. In the first place, legal abortions have ranged between 1 million and 1.6 million per year since 1975.¹² Common sense suggests that there would have been far fewer abortions before removal of criminal sanctions, establishment of abortion clinics all over the country, heavy advertising, and public funding of abortion in many states. In 1981 three researchers estimated a range from a low of 39,000 (1950) to a high of 210,000 (1961) and a mean of 98,000 per year. ¹³

The number of maternal deaths actually reported by the U.S. government was far lower than the number given by Kopit and Pilpel. According to researcher Cynthia McKnight, government figures showed 1,313 maternal deaths from illegal abortions in 1940, trending down to 197 in 1965 (when Kopit and Pilpel were writing that there were over 8,000 such deaths each year). McKnight attributes the mortality decline to improvements in antibiotics, blood transfusions, and surgical techniques. 

McKnight also cites two major abortion advocates, contemporaries of Kopit and Pilpel, who made far lower estimates than they did. One apparently accepted government figures; the other suggested about 500 deaths per year.¹⁴ Dr. Bernard Nathanson, an abortion doctor and advocate for abortion who later turned against it, wrote of his colleagues in the National Association for Repeal of Abortion Laws (NARAL):

. . . we generally emphasized the drama of the individual case, not the mass statistics, but when we spoke of the latter it was always 5,000 to 10,000 deaths a year.   I confess that I knew the figures were totally false, and I suppose the others did too if they stopped to think of it.  But in the morality of our revolution, it was a useful figure, widely accepted, so why go out of our way to correct it with honest statistics?¹⁵

The highly-inflated figures on illegal abortions and maternal deaths are still in circulation and still influence the abortion debate. They lead many people to believe that legalizing abortion saved thousands of women’s lives each year, without greatly increasing the number of fetal deaths. Many Americans support legal abortion largely because of the numbers. False numbers.

Internal Dissent

Back in the 1960s most abortion opponents probably did not know that the ACLU was about to enter the abortion fight; but the organization did hear from a few of them. One, Michael Gask of New York, warned that civil libertarians must oppose selectivity with regard to rights some human life which is protected, and some which is not or some more equally than others. He also suggested many ways to reduce pressures leading to abortion including offering women prenatal and postnatal care and improving the status of unwed mothers and illegitimate children. An ACLU staff member thought that Gask’s point about positive solutions may have some merit, but doubted that society is ready to take on the kinds of financial costs involved. Later he suggested that Gask does not adequately deal with the impact of the unwanted child and questioned whether changes needed to provide wide-spread care for unwanted children are within the proper scope of civil liberties concern. ¹⁶ 

But selectively denying rights to the unwanted child is precisely what Gask was warning against. And, given their stress on the evils of illegal abortion, ACLU staff and board members seemed markedly indifferent to positive alternatives. If they thought such solutions were outside the proper scope of civil liberties concern, they did not have to undertake such work themselves; but they at least could have encouraged privated foundations and charities to do it.

An activist in the New York Civil Liberties Union, Benjamin DuVal, submitted a paper arguing that anti-abortion laws do not violate any provision of the United States Constitution.   DuVal apparently favored some exceptions to the anti-abortion laws of his day, but he made two crucial points often overlooked by his fellow civil-libertarians: 1) The fact that wealthy women could obtain abortions when poor women could not was the result not of  discrimination in the laws themselves but, rather, of the failure of the prosecuting authorities to enforce the law when illegal abortions were done in hospitals; and 2) enforcement of anti-abortion laws did not conjure up visions of police officers invading the bedroom.  

DuVal’s paper apparently carried some influence with the members of the  Due Process Committee. According to a staff memo, they concluded that laws restricting abortion were not unconstitutional on their face and that society could properly place such value on the life of the unborn child as to render abortion possible only in a narrow range of circumstances. As a matter of policy, though, the committee wanted abortion to be legal up to twenty weeks of pregnancy provided that the husband if any, if he is available consented.¹⁷

When the ACLU board considered the issue in February 1967, board member Harriet Pilpel was ready to pounce. Taking the New York anti-abortion law as her example, she said it was unconstitutional for five different reasons: it was unconstitutionally vague, denied equal protection of the laws to poor women, infringed upon rights to decide about childbearing and to have marital privacy, impaired the right of doctors to practice medicine, and deprived women of lives and liberty without due process of law. Pilpel believed that  equal protection of the laws and due process did not apply to the child in this case or to the husband. She argued that abortions should even be allowed after twenty weeks in some cases, for example where the mother was mentally ill or a mental defective.  

Dorothy Kenyon, still on the board, thought that Pilpel’s approach was not radical enough. A majority, though, were concerned that late abortions could harm women’s health, and so the board reduced the proposed period in which an abortion could be obtained from five months (twenty weeks) to three months. It sent the question of abortion after three months back to the committee for further clarification. ¹⁸

Up to this point the board had been wrestling with legal questions but had not shown much interest in philosophy or ethics. There was a tendency to dismiss such concerns as religious, and particularly Catholic. But when Thomas Shaffer, a law professor at the University of Notre Dame and an activist in the Indiana Civil Liberties Union, wrote the ACLU to protest that the group was coming down on the wrong side, he did not make the religious arguments the ACLU might have expected from a professor at a Catholic university. Indeed, he said that one of the weaknesses of the defense [of life] is that it is associated with Roman Catholicism which, because of its medieval attitude on birth control and divorce is least competent to carry it out. But Shaffer also declared:

If any group defends secular ethics in our society, it is the ACLU.  The first principle of secular ethics is that life is an absolute value. The Union’s defense of pacifism is an ancient example of that; its statement on capital punishment is a more recent example.

Abortion is a betrayal of secular ethics because it solves human problems by the destruction of life. . . .

 Shaffer enclosed a letter he had just written to a newspaper, in which he said:

It is not true that abortion is merely an extension of medical science to the pregnant, any more than the careful antiseptic administration of cyanide would merely extend medical science to the aged.  The question in either case is whether doctors should be healers or executioners.¹⁹

By late 1967, Shaffer apparently had lost hope of reversing an increasingly radical ACLU trend; now he was simply trying to prevent open season on the unborn throughout pregnancy. He wrote:

The reform movement is morally irresponsible because it will not face the possibility that this particular form of birth control is infanticide, that it shatters, therefore, the only certain unity mankind has its unity against death. You and I both know that the standard debater’s answer to this challenge is that of course no human life is involved. That sort of evasion makes the reform movement morally indistinguishable from Treblinka and Buchenwald. . . .²⁰

Shaffer’s strong words made some board members worry, at least about late-term abortion, but the stampede toward a hardline, pro-abortion position could not be checked. In March 1968, the ACLU reached the radical position that it still holds today. It did qualify its statement that a woman has a right to have an abortion by defining abortion as a termination of pregnancy prior to the viability of the fetus. (A footnote suggested that this was sometime after the twentieth week of pregnancy and, practically speaking, not until several weeks later. ) Yet even this vague limit seemed to be negated by the next sentence, which asked that state legislatures abolish all laws imposing criminal penalties for abortions. This meant that any woman could ask a doctor to terminate a pregnancy at any time. Dr. Christopher Tietze a population controller, eugenicist, and abortion advocate apparently had convinced ACLU staff that late abortions were rarely done and would not be a serious problem if abortion were legalized.²¹        

I Will Always Take the Money

    ACLU staff had been champing at the bit, anxious to fight for abortion in court.  I think we should get hot on abortion. . . , staff member Eleanor Holmes Norton had written in December, 1967. The Legal Department will, of course, be wanting to get involved in litigation wherever it can be found. ²² When the board passed the new policy in 1968, Norton and her colleagues were off to the races. They made an especially strong approach to Hugh Hefner’s Playboy Foundation for money to finance abortion lawsuits a strange alliance for people who were supposed to be fighting for women’s rights. Norton (who is now the District of Columbia’s non-voting delegate in Congress) even asked, Are there some bunnies we can get who have particular influence with the management? The Playboy Foundation, possibly at that time and certainly later, did support ACLU abortion activity; so did many other foundations, especially ones with strong interests in population control.²³

    Soon the ACLU was deeply involved in litigation to strike down abortion restrictions. It helped win a partial victory in the 1971 case of United States v. Vuitch, which undermined the District of Columbia’s anti-abortion law. Texas lawyer Sarah Weddington was the lead attorney for abortion forces in Roe v. Wade, but ACLU lawyers handled Roe’s companion case, Doe v. Bolton, and ACLU staff have been deeply involved in abortion cases ever since. They fight tenaciously against every restriction on abortion and in favor of public funding for it. When they lost the court battle to continue federal funding for abortion in 1980, they intensified their efforts in state courts and succeeded in obtaining guarantees of public funding in California, Illinois, Massachusetts, New Jersey, and six other states. Their lobbyists in Washington, D.C., work fiercely against every congressional proposal to limit abortion,²⁴ and it seems that nearly every time abortion foes win even a small victory in a state legislature, ACLU lawyers are in court within days or hours to overturn that victory. As they explained in 1980: Our litigation strategy has been to challenge every statute restricting reproductive freedom . . . In states where there are no lawyers willing to undertake these controversial cases, the entire litigation is conducted from the national office. . . . ²⁵

Like Harriet Pilpel in her 1964 paper, they often present themselves as champions of the poor and of minorities in these battles. In Doe v. Bolton, they complained that the Georgia law restricting abortion meant that in a certain period hospital abortions were performed for 408 white women but only for 53 Negro women in the state. ²⁶ They viewed abortion as a good for Negro women and ignored the fact that it killed their children. They also, with their ideological view of a woman’s making the abortion decision in a detached and sovereign way, overlooked women in desperate financial straits, women under heavy pressure from boyfriends or husbands, and teenagers who were afraid to tell their parents that they had become grandparents. 

The eugenicists and population controllers must have been delighted to see the ACLU put the gloss of rights and freedom on abortion. It made their effort to suppress the birthrates of poor people and minorities so much easier.²⁷ Did ACLU leaders know or care about that kind of agenda? Aryeh Neier, executive director of the ACLU from 1970 to 1978, later referred to some African Americans’ feeling that there were whites who were eager to eliminate or limit the number of welfare mother babies out of an anti-black feeling and that’s why they were supporting abortion. In a 1979 interview with one of his law students, Neier added that

there’s no question that I dealt with some supporters of abortion who are very much in favor of abortion for exactly that reason. . . . There was a foundation in Pittsburgh that was willing to provide support for litigation efforts on behalf of abortion because of that feeling.

He said that was also certainly the ideology of a Missouri foundation that had supported ACLU litigation. Wasn’t Neier reluctant to take that kind of money? I don’t regard it as dirty money, he said, so long as people don’t try to impose conditions on what you can do with the money. He added that if you tried to go back and find out where people made their money and what all their other beliefs are . . . you’d go crazy. So as long as they don’t try to impose restrictions, I will always take the money. ²⁸ Why should they have imposed restrictions when the ACLU already was doing precisely what they wanted done?

Taking chutzpah to new heights, ACLU activists suggested that the ones who were really anti-poor were the defenders of the unborn poor. Arguing for public funding of abortion, ACLU lawyers said that the U.S. constitutional system checks the power of a fervent single-issue minority to victimize the poor. In a fundraising letter, ACLU leader Norman Dorsen charged that those who are trying to force compulsory parenthood on poor women have little regard for our Constitutional freedoms. Dorsen also realized that cranky taxpayers were among his potential supporters. Financing abortions for the poor is far less expensive than the cost of childbirth and welfare support for unwanted children, he wrote. So the government is actually paying out your tax dollars to force poor women to become mothers. ²⁹

Worries About the Right-to-Lifers

In 1974 the ACLU established a Reproductive Freedom Project to defend and expand its court victories. By 1977, worried by the growing strength of the right-to-life movement, ACLU leaders decided to launch a national campaign of public education, lobbying, and yet more litigation. Staff member John Shattuck cautioned: Since the abortion issue is so controversial outside the ACLU, our ‘pro-choice’ campaign should be conducted in the context of a larger effort to defend human rights. Later, when the ACLU board discussed and approved the campaign, It was pointed out that the Right-to-Lifers are the only group educating on abortion at the grass roots level, and it was suggested that such reactionary groups are representative of some of the most anti-civil libertarian forces in the country. ³⁰ What was the basis for the second statement? The record does not show any ACLU effort to meet right-to-life leaders or to discuss civil-liberties issues with them. ACLU leaders, moreover, knew that some of their own activists opposed abortion. Thomas Shaffer, quoted earlier, was one example. Jay Sykes, president of the Wisconsin ACLU in 1968-70, had lambasted liberals’ support of abortion in a 1974 essay called Farewell to Liberalism. And when the ACLU executive committee discussed the proposed abortion campaign, Some questions were raised such as the fact that many ACLU members and supporters felt uncomfortable about abortion, regarding it as killing . . . ³¹

Worries About Late Abortions

As noted earlier, official ACLU policy favors abortion prior to the viability of the fetus. ACLU lawyers devised a way to make this limit meaningless: In the late 1970s, they argued that the decision as to fetal viability must be left to the good faith medical judgment of an attending physician. Doctors, they said, must be insulated from threats of criminal prosecutions based upon an allegation that the doctor’s diagnosis was wrong. ³² 

In 1985, however, the ACLU board noticed that its formal abortion policy seemed slightly less radical than Roe v. Wade on the issue of late-term abortions,  so it established a special committee to review the old policy.³³ One member of the committee, attorney Rolland O’Hare, was deeply worried by late-term abortions and expressed the view that an abortion of an eight and a half month fetus constituted murder . . . But other members, including chairwoman (and law professor) Nadine Taub, felt that abortion must be allowed up until birth.³⁴ Attorney Jeremiah Gutman favored a statement that a woman, even though the birth is imminent, has the right to instruct her physician that she does not want the fetus born alive. Dr. Warren Hern, an avid population controller and a specialist in second- and third-trimester abortions, spoke about what committee minutes called a woman’s right to a dead fetus. The minutes added: He said that a woman who is 23 weeks pregnant and chooses to have an abortion does not want a seriously impaired fetus to survive. One member, though, said the Committee should avoid the ‘dead fetus’ language. ³⁵ Well, yes, that might have been a public-relations problem. It might also be a public-relations problem for Hern if it were generally known that his curriculum vitae as of 1994 noted his membership in the Society for the Study of Social Biology. That’s the current name of the old American Eugenics Society. In 1997, when I asked Hern if he was still a member, he responded: What are you up to? . . . It’s none of your business. ³⁶

Eventually the committee recommended to the ACLU board a statement that every woman has a right to have an abortion at any time in pregnancy and to select any method of abortion. There was no viability restriction, not even in a footnote. Some board members supported the proposal but felt it needed more explanation. One member argued that the relatively small number of late term abortions does not excuse infanticide and [that] fully viable fetuses should not be killed. In the end, the board sent the issue back to committee for more work. The overhaul effort apparently petered out, and the 1968 policy with its vague viability limit is still in effect. But that limit means little or nothing. The ACLU fiercely resists efforts to ban even the gruesome D & X or partial birth abortion.³⁷

What Ever Happened to the First Amendment?

The First Amendment has been an ACLU byword from the organization’s inception, and some ACLU affiliates have stoutly defended the free-speech rights of abortion foes. In the mid-1980s, when Montgomery County, Md., denied free bus advertising space to a pro-life group space previously given to a peace group the local ACLU went to court and obtained space for the pro-lifers. A Michigan abortion clinic won a restraining order to keep picketers and leafleters 500 feet away from its building, but the local ACLU went to court for the demonstrators and got the order thrown out. In Tacoma, Washington, when a clinic obtained an injunction forbidding picketers to refer to killers or murderers, the ACLU filed a friend-of-the-court brief supporting the demonstrators. The ACLU has also supported protestors’ right to picket homes of abortion doctors; two Pennsylvania activists remarked that we have angered many friends in the pro-choice movement by this stand. ³⁸

Yet there is a built-in conflict of interest when the ACLU represents abortion clinics, as it so often does, especially when it wields the mighty tool of  injunction a tool the ACLU fought in its early years when injunctions were used to paralyze the labor movement. One writer has suggested that the situation could be worse: In court appearances in California on behalf of clinics, A.C.L.U. attorneys have not sought the broadest possible injunctions against pro-life activists, despite the fact that these might benefit clinics and their clients. ³⁹ Yet for pro-life activists to thank the ACLU lawyers for their restraint would have been a bit like a torture victim thanking his torturers for not turning the thumbscrews quite as tightly as they might have.

When Janet Benshoof headed the ACLU’s Reproductive Freedom Project, she once drafted a letter to an Arizona abortion clinic whose staff, according to ACLU Foundation board minutes, wanted to know what local police might do to prevent client harassment by anti-abortion demonstrators. But the Arizona ACLU affiliate objected to the Benshoof draft: the affiliate believes that vigorous expression is protected and that a letter to the FPI [the clinic] would be turned over to the city attorney for possible prosecution of the protestors. ⁴⁰

In 1991 a reporter asked an ACLU lawyer in California about a charge that she had pointed out Operation Rescue leaders to have them arrested. The lawyer acknowledged that she had provided information to police: ‘If I hear them [police] say that they don’t see someone [from Operation Rescue], I’ll tell them, ‘They’re standing right there.’ ⁴¹

Benshoof and roughly a dozen other attorneys of the Reproductive Freedom Project left the ACLU in 1992 and formed a new group called the Center for Reproductive Law and Policy. Benshoof thought they might be able to raise more money as an independent unit; she also said they wanted to expand into international work. Unfortunately, she and her colleagues have succeeded on both fronts.   They are well funded by many of the same private foundations that still fund the ACLU, such as the Robert Sterling Clark Foundation, the Ford Foundation, the Wallace Alexander Gerbode Foundation, the Richard and Rhoda Goldman Fund, the George Gund Foundation, and the David & Lucile Packard Foundation.⁴²

The ACLU made new appointments to fill the gap left by Benshoof and company, and kept on marching with its own Reproductive Freedom Project.  Departure of the old staff did not, however, end the conflict between the ACLU’s devotion to the First Amendment and its dedication to abortion.

Bubble Zones, FACE, and RICO

In a 1997 U.S. Supreme Court case, the national ACLU filed an amicus curiae (friend of the court) brief supporting an injunction that required protestors in Buffalo, N.Y., to stay at least fifteen feet away from abortion clinics’ entrances and driveways. The injunction also provided a fifteen-foot bubble zone or floating buffer zone around each client who came to the clinic. Sidewalk counselors were allowed to approach women within the bubble zone, but they had to retreat if the woman indicated she did not want counseling. The ACLU brief said the injunction was consistent with the First Amendment . . . and should be upheld.

Three ACLU affiliates (Florida, Indiana, and Ohio) disagreed so strenuously with the national ACLU position that they filed their own amicus brief. This brief was the kind of clear First Amendment statement that the national ACLU had made in so many other cases and should have made in this one. An attorney with the Ohio affiliate commented: There are people I consider to be civil libertarians who believe in an abortion exception to the First Amendment. I think that’s outrageous. . . .   The Supreme Court upheld much of the injunction, but struck down the provision for bubble zones.⁴³

Two years later, the national ACLU changed course. It filed an amicus brief against a Colorado law that imposed restrictions within 100 feet of the entrance to any health-care facility. Within that area, the law banned coming within eight feet of any person unless that person consented with the intention of leafleting, protesting, or counseling. But the national ACLU’s re-conversion to the First Amendment came too late; last year, in Hill v. Colorado, the Supreme Court upheld the incredible Colorado law. In its decisions knocking down almost all laws against abortion, columnist Steve Chapman remarked, the Supreme Court has left abortion opponents no way of protecting unborn life except simple persuasion. This decision is calculated to ensure that persuasion doesn’t work. ⁴⁴

The abortion industry has other special protections, too, thanks partly to the ACLU. Years ago the organization supported use of the 1871 Ku Klux Klan Act against anti-abortion demonstrators who blocked access to abortion clinics. When that effort failed, the ACLU helped push through Congress the Freedom of Access to Clinic Entrances (FACE) law. While publicized as a response to violence against abortion clinics and their personnel, the FACE law also bars peaceful sit-ins. The penalties are draconian: a fine of up to $10,000 and/or imprisonment for up to six months for the first offense and up to $25,000 and/or eighteen months for a subsequent offense, plus the possibility of stiff civil penalties. Pro-life demonstrators said they had been singled out for extra punishment that did not apply to most other groups that practiced civil disobedience. When they went to court to challenge FACE, the ACLU was there to file amicus briefs against them. Our analysis has been persuasive, the ACLU boasts. In every case, FACE has withstood constitutional scrutiny. ⁴⁵

The ACLU has been ambivalent about use of a federal anti-racketeering statute against pro-life demonstrators. Congress passed the Racketeer- Influenced and Corrupt Organizations (RICO) law in 1970 as a tool in the battle against organized crime. But abortion clinics have used it with great effect against demonstrators and rescuers, since it allows civil suits with the possibility of treble damages.

The ACLU lobbied against RICO before its passage, warning that it posed serious threats to civil liberties. In 1987, ACLU representative Antonio Califa testified for RICO reform, noting that the law had a chilling effect on the free-speech rights of anti-abortion demonstrators. Simply by filing a claim, he declared, the plaintiffs stigmatize the anti-abortion activists as ‘racketeers,’ often forcing a wide array of defendants, or an entire organization, to retain counsel no matter how frivolous the allegations. He said that the mere threat of a RICO claim, with its treble damages, may be enough to preempt an organization from activities normally thought to be covered by the First Amendment’s protective umbrella. ⁴⁶

Yet the ACLU’s Reproductive Freedom Project had published a booklet suggesting that abortion clinics consider using RICO against demonstrators. Isn’t that rather strange advice for a civil-liberties group to be giving? I once asked ACLU Executive Director Ira Glasser. He responded forthrightly: It is, and we regret it. . . . We have not republished that, and if we do re-publish it, we are going to delete or alter that advice. He said that it had slipped through out of the zeal of people who were representing abortion clinics which were really under siege by a mixture of First Amendment-protected activity and violent activity . . . ⁴⁷

But Glasser’s remark, made in 1988, did not necessarily mean that the ACLU would represent protestors targeted by RICO. The following year, two Pennsylvania ACLU officials acknowledged that their Philadelphia branch had failed to aid pro-lifers in a critical RICO case partly because the abortion clinic that was using RICO against the pro-lifers was already represented by the ACLU in another case. The officials suggested that this meant a possible conflict of interest. (That, of course, is one reason why the ACLU should not be representing abortion clinics in the first place.) But the officials also stressed that the courts had applied RICO only against protesters who had illegally interfered with the clinic. Earlier, one of them said that Philadelphia ACLU leaders thought RICO was applied properly in the case.⁴⁸

In 1990 a staffer on the Reproductive Freedom Project told columnist John Leo:  It’s ACLU policy to oppose application of RICO, but there are those on staff who feel that as long as RICO exists, this kind of behavior [Operation Rescue tactics] does fit. Leo interpreted: In other words, RICO is totally bad, but sort of useful. ⁴⁹

John Leo, law professor Alan Dershowitz, and columnist Nat Hentoff have all charged that the ACLU’s abortion involvement compromises its role as guardian of the First Amendment.⁵⁰ The record shows that they are right.⁵¹

Could the ACLU Be Turned Around?

Organizations, especially ones as well established as the ACLU, are notoriously difficult to turn around on major policy questions. Yet it is possible to imagine appeals to reason and conscience that would reinforce dissenters within the ranks and encourage others to review their policy. Such appeals might also alert liberals in general including liberal judges to the profound inconsistencies in ACLU policy.

Dialogue with ACLU activists should cover scientific evidence that the embryo and fetus are human beings, as well as philosophical evidence that they are persons. It should also deal with the issue of power and the perennial temptation to use it against the weak. It could include discussion of religious motivation for opposition to abortion, which is not the church/state problem many civil libertarians believe it to be. The effort should be aided by the fact that there are several groups and one individual to whom many ACLU members might be willing to listen: Libertarians for Life; pro-life feminists; pro-life African Americans; and the journalist, Nat Hentoff.

Status of the Embryo and Fetus

It is important to challenge the ACLU to face squarely an issue it has long evaded: whether the being in existence after fertilization is a human being, a member of the species Homo sapiens. One ACLU publication conceded that the fetus is alive but suggested that whether it is a human being is an inherently religious question. ⁵² Actually, it is not; science also has an answer to that question. Human embryologists say that each human being begins to exist as an individual at fertilization. The only exception is some multi-fetal pregnancies: with identical (monozygotic) twins, the first human being begins to exist at fertilization, and the second begins to exist soon after, when the embryo divides (triplets and higher multiples can be identical, fraternal, or a combination).⁵³ But whether through fertilization or division, each human being begins to exist as an individual in the embryotic state. This is not religious dogma; it is scientific fact. Failure to acknowledge it is a radical error that undermines the entire ACLU stance on abortion. It calls to mind a long-ago cartoon that showed the Tower of Pisa just after its completion, standing straight. The architect or engineer confided to a friend that he had cheated on the foundation a little bit, but added that no one would ever know the difference.

Personhood

Answering the scientific question of when each human being begins to exist does not settle the philosophical question of personhood. But those who assert that one can be a human being without also being a person have a very heavy burden of proof to meet. They are like the hunter who sees movement in the brush but does not know whether it is caused by a deer or another hunter. He must not shoot first and ask questions later. He has an obligation to find out whether a person is there; if so, or if he cannot find out, he has no right to shoot.

The ACLU and other abortion supporters have failed to show that unborn humans lack personhood; indeed, many have not even tried to show this. They seem to believe it is all right to shoot first and ask no questions at all.

Perhaps they are influenced by the tiny size of the early embryo and the fact that let’s assume we are speaking of a female embryo she does not look like us. Yet she looks as she should look at that stage of her development. So did we all look at one time.

Our vision and experience are sharply limited in some ways. To our vision, it seems that the sun moves around the earth rather than vice-versa. We still speak of sunrise and sunset. Yet intellectually we know that it is the earth, not the sun, that rotates daily. We also know intellectually that the embryo is living, is a member of the human species, and has in her genes all the information needed to complete her development: she is, as one writer notes, a self-assembler. ⁵⁴

Because a human being at the embryonic stage cannot yet express her potential to think and speak, to use reason and will, many ACLU activists believe that she is not yet a person or at least not a complete person. Yet this goes against the concept of equality that the ACLU champions elsewhere.  Philosopher Germain Grisez once imagined a case in which an embryo could speak in his own defense. The embryo, he said,

might contend that the life of an adult is of less worth than his. After all, the adult has less time left to live . . . Most of what he could have been has been sacrificed in his becoming what he is, and much that he has been can never be recaptured.

The embryo could say that

my life is far better than yours, for my life is a process of development and ever increasing vitality, while yours is a process of deterioration and waning vitality as you decline toward death.

Grisez did not agree with this approach, but said that it would be no more fallacious than ours, if we measure his worth by his degree of development. ⁵⁵

In arguing that personhood starts at fertilization, writer Doris Gordon says:

     No sperm or ovum can grow up and debate abortion; they are not programmed to do so. What sets the person aside from the non-person is the root capacity for reason and choice. If this capacity is not in a being’s nature, the being cannot develop it.  We had this capacity on Day One, because it came with our human nature.

To be persons, she says, human beings need do nothing but be alive. We were all very much alive at conception.   She finds that:  Given personhood, a human fetus has the same right as every innocent person not to be attacked and killed. ⁵⁶

Power: Who Can Hire the Fewest Lawyers?

The idea of gradual or delayed personhood entails at least one lower tier of humanity. It also suggests the possibility of losing one’s personhood, so that people who are brain-damaged, demented, or in a coma might also occupy lower tiers. As writer John Walker notes, some advocates of gradual personhood suggest that once we have it, we are home free and need not worry about being regarded as mere things. This way, the debate can appear to apply only to the preborn or very young. Those of us who are already members of the club need not concern ourselves about the implications of the debate. But he not