Overruled


Anti-Choice Groups Demand Veto Power Over Obama’s Nominees
April 10, 2009, 9:50 am
Filed under: Ian | Tags: ,

koh_haroldI written before about the absurd claim by some opponents of reproductive freedom that Dawn Johnsen should not be confirmed to lead OLC because of her pro-choice views, even though her duties at OLC have virtually nothing to do with abortion.  When I wrote that post, I though that the anti-choice attacks on Dawn were in bad faith because they couldn’t possibly think that she would play a significant role in setting Administration policy on reproductive choice from her perch in OLC.

Having now seen this anti-choice attack on Dean Harold Hongju Koh’s suitablity to be the State Department’s Legal Advisor, I’m not longer so sure.  The anti-choice view of Koh, if I can make any sense of it at all, appears to be that Dean Koh is pro-choice, and he also believes that international norms are relevant in considering what the scope of human rights should be under U.S. law.  So it somehow follows that Koh “could urge the Secretary of State and other officials to press for a new standard beyond the so-called privacy basis to justify keeping Roe and its ruling that unlimited abortions should be legal throughout pregnancy for any reason.”

It’s hard to know where to begin in explaining why this fear is absurd.  For starters, the body of the U.S. Government which has authority to decide whether or not what is left of Roe will remain good law is called the “Supreme Court,” not the “Department of State.”  While I normally do not read lifenews.com for their nuanced and insightful grasp of difficult legal concepts, I thought that they were aware of this fairly basic concept.  Moreover, while it is the case that an Administration’s view does often influence the Supreme Court’s decisions, this is much less true on hot button issues such as abortion where the Justices views are fairly entrenched—and even if the Justices were inclined to be swayed by the Adminsitration’s views of reproductive health, the body of the U.S. Government which presents arguments to the Supreme Court is known as the “Department of Justice” not the “Department of State.”

Of course, DOJ does consult with other agencies regarding its positions before the Supreme Court—although it is unclear why it would consult with the department responsible for setting foreign policy when it was litigating on our domestic policy regarding abortion—so it is theoretically possible that Dean Koh could, at some point in his career receive a call from Solicitor General Kagan asking his views on abortion, but the likelihood of such a call occurring is small, and the likelihood of it actually affecting U.S. law governing abortion is virtually non-existant.

Which brings me to one final point: if you try hard enough, I suppose you can imagine a way that any Administration official could theoretically influence federal abortion policy.  The Department of Labor could, theoretically, push to have abortions covered by employer-provided health plans.  The Department of Energy could attempt to regulate the amount of electricity which must flow to Planned Parenthood clinics.  The Department of Transportation could try to ban billboards protesting Roe from federal highways.  Given sufficient imagination, I’m sure you could dream up a way that any one of the President’s appointments could someday be relevant to the abortion debate—so the only way to be absolutely sure that a pro-choice appointee does not someday push to expand reproductive freedom is to ban the 53% of Americans who identify as pro-choice from government service altogether.

Judging from their tenuously-justified opposition to Dean Koh, I can only assume that this is what the anti-choice groups hope to accomplish.

(note: a reader wrote me noting my tendancy to refer to Professor Dawn Johnsen as “Dawn,” and while I refer to some other prominent individuals (such as Dean Harold Hongju Koh or Solicitor General Elena Kagan) by their last name or title.  My reason for doing so is because I know Dawn personally, but I do not know Dean Koh or General Kagan (although I met Koh once at the ACS Convention in 2004).  My use of the familiar in refering to Dawn Johnsen is not meant to indicate anything other than the fact that I am already on a first name basis with her.)

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