The following appeared in shorter form in Human Life Review, Spring 2001. Revised, 2004 & 2006. Copyright © 2001, 2004, & 2006 by Mary Meehan.
ACLU v. Unborn Children
In its early days in the 1920s, the American Civil Liberties Union (ACLU) was a small but feisty group. It was 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, both North and South.
Today it claims more than 550,000 "members and supporters." The combined annual budget of the main group and its ACLU Foundation is about $93 million. Its national office staff, approaching 400 members, is a small army. The group says it has "51 staffed affiliates and more than 300 chapters nationwide." It also has a lobbying office in Washington, D.C.(1) Despite such power and wealth, 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 written, "for the simple reason that they have been the most frequent victims of intolerance and repression."(2)
Many Americans recognize the ACLU for its First-Amendment defense of leftists. But the organization also sided with Iran-Contra figure Oliver North on a key Fifth Amendment issue, and it works with conservatives who oppose campaign finance regulation. Even many ACLU critics give the group points for defending both left and right.
Other critics, though, believe that the organization is highly politicized and that it often strains to make leftist political causes into civil-liberties issues. They also believe that it trivializes profound issues by mixing them with others that are slight or silly. Thus columnist Thomas Sowell has imagined an ACLU voice-mail system:
"Hello. This is the headquarters of the American Civil Liberties Union. We are here to help safeguard your constitutional rights....
"If you are a girl who has not been allowed to play on a boys' athletic team, press three.
"If you are a defendant in a criminal case and have had an unhappy childhood, press four.
"If you are a student who does not want to follow the dress code at your school, press five....
Later in the menu:
"All other injustices, press eight.
"As a victim of miscellaneous injustices, you are entitled to the full protection of the law and to just compensation. Our attorneys will see that you get it...."(3)
Many Americans wonder: Why so many attorneys and so many lawsuits? "Must the ACLU decide everything in a courtroom and/or through another unneeded law?" asked one observer. "Have the ACLU and similar groups lost the capacity to educate and thereby obtain a lasting majority in thought and behavior?"(4)
Other critics argue that the ACLU promotes a type of individualism that actually harms the individual as well as the community. William A. Donohue contends that the organization has an "atomistic conception of liberty" that overlooks the value of "mediating institutions of family, school, church, and voluntary associations." If such institutions are largely destroyed, he suggests, then the individual will be left helpless before the power of the state.(5)
Yet the ACLU's biggest problem is not its failure to live up to outsiders' standards. It sometimes violates its own traditions and principles in a radical way. This is especially true of its long and relentless campaign against the right to life of unborn children.(6) Here the champion of the defenseless turns the power of adults--and of government--against the most defenseless humans. The defender of equal rights supports a two-tiered view of humanity, with those on the lower tier having no rights at all--not even the right to trial by jury. The defender of free speech helps ensure that millions of human beings will never have a chance to speak--or to exercise freedom of religion, freedom of the press, the right of assembly, and the right to petition the government for redress of grievances.
In other cases, the ACLU insists on the Fifth and Fourteenth Amendment guarantees that no person may be deprived of "life, liberty, or property, without due process of law." It is no coincidence 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 one class of human beings--the smallest and weakest.
How and why did these contradictions occur? The organization's own archives, located at Princeton University, tell much of the story. Some files there are not yet open to researchers; but enough information is available at the ACLU Archives, and in other sources, to give depth to this report.(7) In the pages that follow, I will show that ACLU abortion policy is based partly on factual error and prejudice. It evades the key issue of homicide (the killing of one human being by another) by ignoring scientific and philosophical evidence about the humanity of the unborn. Despite its shaky foundations, though, the policy is implemented thoroughly and relentlessly. When the free-speech rights of anti-abortion demonstrators are at issue, the ACLU's commitment to abortion sometimes overrides even its dedication to the First Amendment. 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--tried to persuade the organization to fight abortion restrictions in 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. Pilpel and the Planned Parenthood president, Dr. Alan Guttmacher, pursued the legalization of abortion in many forums in the 1960s. Guttmacher, who was vice president of the American Eugenics Society from 1956-1963, probably influenced Pilpel toward eugenics. This is the effort to breed a "better" human race, partly by suppressing the birthrate of the handicapped, poor people, and minorities.
At the 1964 ACLU conference, Pilpel showed some interest in the right to life--but only the life of the woman. 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 she suggested that a woman shouldn't have a child injured by the drug thalidomide while in the womb.(8) (Many such children were born with missing limbs.) Her eugenic approach to fetal handicaps would be echoed later by other ACLU activists. Singling out the handicapped for destruction contradicted the ACLU's principle of equality and its tradition of fighting for--in Samuel Walker's words--the "powerless and the despised."
If those who favored the destruction of thalidomide babies had to explain their position to Tony Melendez, they might 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."(9) It is behavior encouraged by the lasting influence of people like Harriet Pilpel.
In another boost for the eugenics cause in her 1964 paper, Pilpel suggested that legislation restricting birth control and abortion "breeds and perpetuates conditions of delinquency and crime" by encouraging births. She had in mind here "the multiplication of births among low income groups."(10) Ironically, she said this while the ACLU was deeply involved in the civil rights movement, defending the rights of low-income African Americans. Pilpel's eugenics bent should have raised a warning flag for all ACLU activists.
Apparently it did not, because the 1964 conference called for a study of abortion laws' constitutionality. 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."(11)
Pilpel on the Warpath
Pilpel, meanwhile, had recently 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 was her higher ground? It seemed to be that an unwanted child "suffers from his parents' attitude toward him." Apparently it did not occur to her that parents should change their attitude.
Pilpel complained that poor women and minorities suffered a disproportionate number of deaths from illegal abortion. But she did not propose positive efforts to help such women obtain prenatal and obstetrical care instead of abortion. 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. (12)
As the ACLU Due Process Committee developed an abortion policy for consideration by the group's national board, it used rather one-sided working papers collected by ACLU staff. At least one, written by William Kopit and Harriet Pilpel, had serious factual problems.(13) Two errors in the paper misled the ACLU at a critical time and have been widely circulated since then, thus misleading many other people as well. Writing in 1965, Kopit and Pilpel suggested that there were between one million and 1.5 million illegal abortions in the United States each year-- and over 8,000 maternal deaths from those abortions each year. Yet legal abortions have ranged between one million and 1.6 million per year since 1975.(14) Common sense suggests that removal of criminal sanctions, establishment of abortion clinics all over the country, heavy advertising, and public funding of abortion in many states produced a vast increase in abortion after the 1973 Roe v. Wade decision. No one knows precisely how many illegal abortions there were before Roe v. Wade; but 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."(15) These figures are more in accord with common sense.
The number of maternal deaths actually reported by the U.S. government was far lower than the number given by Kopit and Pilpel. Better post-abortion medical treatment apparently caused a fairly steady decline in maternal deaths. According to researcher Cynthia McKnight, government figures showed 1,313 maternal deaths from illegal abortions in 1940, trending down to 197 in 1965 (the year Kopit and Pilpel wrote that there were over 8,000 such deaths each year!). McKnight attributes the mortality decline to antibiotics, blood transfusions, and improved surgical techniques.
She 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(16) Dr. Bernard Nathanson, an abortion doctor and advocate who turned against abortion, later estimated about 500. Speaking of his colleagues in the National Association for Repeal of Abortion Laws (NARAL), Nathanson wrote:
...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?(17)
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, yet did not greatly increase the number of fetal deaths. Many support legal abortion largely because of the numbers. False numbers.
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 opponents. 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 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."(18)
Here we see the "unwanted child" consigned to a lower tier of humanity--precisely what Gask had warned 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 private foundations and charities to do it.
Benjamin DuVal, a lawyer active in the New York Civil Liberties Union, 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 civil libertarians: 1) The fact that wealthy women could obtain abortions when poor women couldn't did not result from discrimination in the laws themselves but, rather, from "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 influenced Due Process Committee members. According to a staff memo, they concluded that laws restricting abortion were "not unconstitutional on their face" and that society could "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.(19)
When the ACLU board considered the issue in February, 1967, board member Harriet Pilpel was ready to pounce. The committee, she felt, had not gone nearly far enough. Using the New York anti-abortion law as an 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 doctors' right to practice medicine; and deprived women of lives and liberty "without due process of law." Pilpel did not consider equal protection of the laws or due process for the child. She felt that a husband's consent to abortion should not be required and that abortions should be allowed after twenty weeks in some cases. Her broad exceptions included cases 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. Some board members, though, were concerned that late abortions could harm women's health, so the board reduced the proposed abortion period from five months (twenty weeks) to three months. It sent the question of abortion after three months back to the committee "for further clarification."(20)
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) matters. But when Thomas Shaffer, a University of Notre Dame law professor and 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 that:
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.(21)
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 charged that:
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....(22)
Shaffer's strong words made some board members worry about late abortion as possible infanticide; but the stampede toward a hardline, pro-abortion position was so strong that it overrode a specific time limit. In March, 1968, the ACLU reached a radical position that is still in effect today. It qualified 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, abortion advocate and eugenicist--apparently had convinced ACLU staff that late abortions were rarely done and would not be a serious problem if abortion were legalized.(23)
"I Will Always Take the Money"
ACLU staff had been champing at the bit for some time, 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."(24) When the board passed the 1968 policy, she and other staff were off to the races. They looked especially to Hugh Hefner's Playboy Foundation for money to finance abortion lawsuits--a strange position 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.(25)
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. Those 1973 cases led to a situation close to abortion on demand.
ACLU staff have been deeply involved in abortion cases ever since. They fight tenaciously against every restriction on abortion, and they try to obtain public funding for it. When they lost the court battle to continue federal funding in 1980, they intensified their efforts in state courts and managed to guarantee 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.(26) 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.
Ironically, they often see 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."(27) They viewed abortion as a good for African American women and ignored the fact that it killed their children. Finding solutions to help both mothers and children seemed beyond their ability or interest. With their ideological view of a woman's making the abortion decision in a detached and sovereign way, they 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.(28) Did ACLU leaders know or care about that kind of agenda? Aryeh Neier, ACLU executive director from 1970-1978, 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. Was Neier bothered by taking 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."(29)
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 it was not they, but rather the defenders of life--and of the unborn poor--who were really anti-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." Yet 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."(30)
Worries About the Right-to-Lifers
In 1974 the ACLU had 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 abortion campaign of public education, lobbying, and even more litigation. Staff member John Shattuck remarked: "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."(31) 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...(32)
At a board meeting months later, eugenics raised its ugly head again when a member "felt that a way to turn around the tide against us [on abortion] 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."(33)
ACLU attorneys continued their militant battles in the courts. 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...."(34)
Worries About Late Abortions
As noted earlier, official ACLU policy defines abortion as occurring "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." The Supreme Court was all too eager to protect abortionists in this fashion.(35)
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.(36) The committee included one member, attorney Rolland O'Hare, who 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. (37) 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-trimester 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."(38) 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 1994 curriculum vitae 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 him if he was still a member, Hern responded: "What are you up to?....It's none of your business."(39)
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." Others, too, worried about late-term abortions, but there was much sentiment for
permitting them in cases of fetal handicap. 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
Whatever Happened to the First Amendment?
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 pickets and leafleters 500 feet away from its building, but the local ACLU went to court for the demonstrators and had the order thrown out. In Tacoma, Washington, when a clinic obtained an injunction forbidding anti-clinic pickets from referring 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 prochoice movement by this stand."(41)
Yet its record is not consistent. This is partly because there's 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 injunctions. Its use of injunctions against pro-life groups is ironic because in its early years the ACLU fought injunctions that were used to paralyze the labor movement. One writer, though, 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."(42) Yet one suspects that pro-life activists failed to thank the ACLU lawyers for their restraint. That would have been too much like someone who thanks his torturers for not turning the thumbscrews quite as tightly as they might have.
When she headed the ACLU Reproductive Freedom Project, Janet Benshoof 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." Instead of backing the Arizona affiliate, however, the board voted to let the staff handle the matter.(43)
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.'"(44) But the ACLU tradition is to defend the rights of demonstrators--not to help the police arrest them.
Benshoof and the other attorneys of the Reproductive Freedom Project--roughly a dozen lawyers--left the ACLU in 1992 and formed a new group called the Center for Reproductive Law and Policy. Benshoof thought they might raise more money as an independent unit; she also said they wanted to expand into international work. Unfortunately, they have done so, while also continuing aggressive litigation on behalf of abortion within the United States. Their group, now called the Center for Reproductive Rights, has received grants from many of the same foundations that have funded the ACLU, such as the Robert Sterling Clark Foundation, Ford Foundation, Wallace Alexander Gerbode Foundation, Richard and Rhoda Goldman Fund, George Gund Foundation, David & Lucile Packard Foundation.(45)
The ACLU made new appointments to fill the gap left by Benshoof and company--and kept on marching with its 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. So deep was the conflict that the organization kept wobbling back and forth on key issues related to protest at abortion clinics.
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 clinic client. Two sidewalk counselors were allowed to approach women within the bubble zone, but they had to retreat when women indicated they 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. It 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. (The affiliates, understanding that the bubble zone applied on each side of a person, noted that it "effectively imposes on protestors a thirty foot swath around each individual and vehicle entering a clinic." It is hard to speak effectively--much less quietly--to an audience so carefully protected from speech.) 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.(46)
Two years later, the national ACLU--probably battered by more internal fighting over the issue--changed course. It filed an amicus brief against a Colorado law that was aimed at anti-abortion demonstrators, but applied within 100 feet of the entrance to any health-care facility. Within that area, the law banned approaching within eight feet of any person--unless that person consented--with a plan to leaflet, protest to, educate or counsel the person. But the national ACLU's conversion back to the First Amendment came too late; because the Supreme Court, with a 2000 decision in Hill v. Colorado, 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."(47)
The abortion industry has other special protection, 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 at such clinics. It provides draconian penalties for a sit-in: a fine up to $10,000 and/or imprisonment 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 who practiced civil disobedience. When they went to court to challenge FACE, though, 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."(48)
The ACLU has been ambivalent about use of a federal anti-racketeering statute against pro-life demonstrators. Congress passed the Racketeer Influenced Corrupt Organizations (RICO) law many years ago as a tool in the battle against organized crime. For years, though, abortion clinics used it with great effect against sit-inners or "rescuers," since it allows civil suits with the possibility of treble damages.
The ACLU had 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 was chilling 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."(49)
Yet the ACLU 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 Ira Glasser, who was then the ACLU's executive director. 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..."(50)
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 said the courts had applied RICO only against protestors who had interfered illegally with the clinic. Earlier one of them said that Philadelphia ACLU leaders thought RICO was applied properly in the case.(51)
In 1990 a staff member of the Reproductive Freedom Project told columnist John Leo: "It's ACLU policy to oppose applications 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." While Supreme Court decisions in 2003 and early 2006 apparently have ended the use of RICO against anti-abortion demonstrators, the severe FACE law is still in effect. (52)
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.(53) The record shows that they are right.(54)
Could the ACLU Be Turned Around?
Organizations, especially ones as old 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.
I will address each of these points in turn. Then I will speak briefly about several groups and one individual to whom some ACLU members might be willing to listen: Libertarians for Life; pro-life feminists; pro-life African Americans; and the noted civil libertarian and writer, 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. An ACLU publication conceded that "the fetus is alive," but suggested that whether it is a human being is "an inherently religious question."(55) Actually, it is not. Science has an answer to the question, but apparently it is an answer the ACLU does not like. Human embryologists say that each human being begins to exist at fertilization, with the exception of some multi-fetal pregnancies. With identical twins, the first human being begins to exist at fertilization while a second begins to exist soon after when the embryo divides. Triplets and higher multiples can be identical, fraternal, or a combination.(56) But whether through fertilization or division, each human being first exists as an embryo. 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.
Answering the scientific question of when each human 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, and that one is justified in killing a supposedly "non-person" human being, 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 another hunter or a deer. He may not "shoot first and ask questions later." He must find out whether a human being is there; if so, or if he cannot find out, he has no right to shoot.
The ACLU and other supporters of abortion 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 affected 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 human 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 directs her own development; she is, as one writer notes, "a self-assembler."(57)
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
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."(59)
Power: "Who Can Hire the Fewest Lawyers?"
The idea of gradual or delayed personhood demands at least one lower tier of humanity. It also suggests the possibility of losing one's personhood, so that there might be several more lower tiers for people who are brain-damaged, demented, or in coma. 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 notes that some are willing to kick certain members out of the club--"to 'de-person' those of us who fall below their standards."(60) This is painfully clear in efforts to justify killing handicapped infants and adults.
Further, as Doris Gordon notes, those who advance the philosophical idea of delayed personhood cannot agree among themselves on when personhood begins.(61) Any point other than fertilization is purely arbitrary and subject to change according to ideological fashion or opinion polls--the kind of change that the ACLU strenuously resists when defending rights in general.
Who or what the law declares a person is currently very much an issue of power. A pro-life group made this point with a little quiz:
Under current U.S. law, which is not a person?
a) A Supreme Court judge
Hint: Who can hire the fewest lawyers?
And Gordon comments: "If one is free to decide whether another is a person, then whoever is strongest will do the deciding, and we all had better be thinking about our own prospects."(62)
Abortion supporters often use religious disagreement over when human life and personhood begin to say that choosing any position means imposing a religious belief on those who do not share it. Sometimes they delight in quoting the Talmud on the forty-day embryo as "mere fluid" or quoting St. Thomas Aquinas on delayed ensoulment.(63) Yet ancient and medieval religious commentators just followed the experts of their day, who--lacking microscopes and other scientific equipment--knew very little about embryonic and fetal development and nothing whatever about genes and chromosomes. Accepting their views on when each human being begins amounts to imposing false science on everyone. It is profoundly reactionary.
Abortion is not merely a religious issue. Many are active against it both for secular or human-rights reasons and for religious reasons. People do not necessarily need religious insight to understand that a certain practice is unjust, but religious motivation often leads them to do something about it. The nineteenth-century campaign to abolish slavery was based mainly in the Quaker community and the evangelical churches,(64) and abolitionists used both religious and human-rights arguments. The civil rights movement of the 1950s and 1960s was based squarely in the black churches and was led by ministers.(65) Their religion gave them strength for the journey, courage for the long haul. Certainly the ACLU does not suggest that civil-rights laws passed in that era are invalid because most civil-rights activists had religious motivation for their work.
Libertarians for Life
The other side of the coin, though, is that pro-lifers who are religious must be willing and able to make a secular case against abortion when they are speaking in the public square. They, as well as ACLU activists, would do well to study the publications of Libertarians for Life. I have already quoted Doris Gordon, the group's founder and leader (an atheist who once supported legal abortion) and John Walker, its research director. They and their colleagues use reasoning that is expressly philosophical and scientific, rather than religious. They do some of the best and most lucid philosophical work of anyone on either side of the issue. One of the many topics they discuss--and one too often overlooked on both sides--is parental obligation.
Gordon once believed that there was an insoluble conflict between the unborn child's right to life and the woman's right to liberty and to control her own body. But as she thought about the principle of parental obligation, she realized that there may be a conflict of needs, but there is not one of rights, because the child has a right to be in the womb:
The cause-and-effect relationship between heterosexual intercourse and pregnancy is well-known. The child did not cause the situation....
The stork did not do it. The fact of parental agency refutes any assertion that the child is a trespasser, a parasite, or an aggressor of any sort.
The unborn child's life "is thrust upon her," Gordon notes, "as is her need for life support and her inability to fend for herself....she is created vulnerable to harm."(66) When we place someone in harm's way, she says, we have an obligation to be sure that harm does not befall them.
Conception followed by eviction from the womb could be compared to capturing someone, placing her on one's airplane, and then shoving her out in mid-flight without a parachute....
....Even simple eviction from the womb initiates force and violates the child's rights (in most abortions, however, the child is first dismembered, or poisoned, then evicted).
Gordon concludes: "For the prenatal child, the mother's womb is home; this is where she needs to be--and this is where she has the right to be."(67)
Listening to Pro-Life Feminists
ACLU activists should pay attention to pro-life feminists, who also believe that parents have obligations to children both before and after birth. That was the view of early American feminists such as Susan B. Anthony, Elizabeth Cady Stanton, and Alice Paul. They saw abortion not as a right of women, but an exploitation of them.(68) Following their lead, New Zealand feminist Daphne de Jong has protested "processing women through abortion mills to manufacture instant imitation men who will fit into a society made by and for wombless people." To accept the 'necessity' of abortion, she has written, is to accept "that pregnant women and mothers are unable to function as persons in this society." But society should be changed to accommodate mothers, rather than vice-versa.(69)
Feminists for Life of America is trying to change society through the educational work of its College Outreach Program. It also organizes campus forums where students and administrators plan ways to help pregnant and parenting students. So great are the needs, especially for on-campus child care, that feminists on both sides of the abortion issue sometimes work together to implement the plans.(70)
While much of their focus is practical, pro-life feminists have not forgotten rights--either their own or those of children. As de Jong has warned: "Human rights are not exclusive. Any claim to a superior or exceptional right inevitably infringes on the rights of someone else. To ignore the rights of others in an effort to assert our own is to compound injustice, rather than reduce it."(71)
Listening to African American Pro-Lifers
The ACLU commitment to the rights of African Americans dates back to the 1920s; it is a strong and consistent feature of the group's history. ACLU leaders should, therefore, ponder the fact that the abortion rate of non-white women in this country is nearly three times that of white women. In absolute numbers, nearly 500,000 black children are aborted each year in the United States.(72) These numbers might have pleased the bigoted foundation donors Aryeh Neier mentioned, but they should alarm today's ACLU activists.
Dr. Yvonne Frank Sims, an African American physician, used the word "genocide" to describe what abortion does to her people. She added: "Now we even have the media telling us that the killing of those precious babies is somehow responsible for the reduction in inner city crime!" Dr. Frank's comments are of special interest because she acknowledged that, as a young doctor, she had "performed many, many pregnancy terminations for desperate women and young girls." Like some other ex-abortionists, though, she concluded that pregnancy aid centers--not abortions--are the answer for desperate cases. She now assists a center where a woman can "develop a plan for her baby that both she and the baby can live with."(73)
Pamela Carr, an African American who identified herself as "a young professional woman," described her experience of abortion when she was a high school student and thought that a baby would interfere with her college plans. She felt great anguish and guilt after the abortion and "became deeply depressed." Noting that abortion is offered to young black women as a way to overcome problems and "strive for brighter tomorrows," she said that it "only darkened my future" and that it "took me many years to rise above the tide of confusion and guilt that flooded my life." Referring to problems that afflict the African American community, Carr declared:
....Abortion eliminates children, not these complex social problems. We shortchange ourselves when we buy the lie that we can improve the quality of our lives by terminating the lives of our children. How many more of them have to die before we realize that abortion is not a solution but another, more troubling, problem plaguing our community?
....We cannot gain our freedom and our rights by taking away the lives of other members of the Black community. If we do, we have cheated ourselves of a future and betrayed the leaders who came before us and struggled so hard for our lives.(74)
Nat Hentoff Goes to the Garden Party
ACLU activists should also listen to one of their own former board members, author and syndicated columnist Nat Hentoff. He is an atheist who, although never an abortion activist, used to take abortion for granted. But his experience of defending handicapped newborns led him to take another look at the issue.
Starting in the early 1980s, Hentoff fiercely defended the "Baby Does" who, because of spina bifida or other handicaps, were denied medical treatment in the hope that they would die. He wouldn't let up, and he wouldn't back down. He pounded away in the Village Voice and the Washington Post against his liberal friends who supported denial of treatment. As another journalist later said, "Hentoff takes real risks, challenges icons and ideas that are treasured in the community he lives in. He puts on his skunk suit and heads off to the garden party, week after week, again and again."(75) It was--and is--an awesome performance.
Hentoff was shocked by the attitudes of liberal friends and organizations (including the ACLU) toward the Baby Doe cases. Noticing links between their attitudes toward handicapped children and toward abortion, he began to rethink the abortion issue, studying texts on prenatal care and speaking with doctors. He reached a position of strong opposition to abortion.(76) "As time went on," he wrote, "I began to understand that there is much more to abortion than abortion itself." The abortion mind-set, he said, "helps strengthen the consistent ethic of death in the nation..." He saw that the connections were not just psychological, but also legal, since lawyers and judges cited Roe v. Wade to justify euthanasia. He was also disturbed by "pro-choicers who regard abortion as an essential purifier of the species," noting that "I've met a goodly number of them."(77)
In an interview years ago, Hentoff mentioned another point that ACLU activists should consider. It does not have to do with ethics or law but, rather, the very human fear of being seen in the wrong company and disturbing one's friends. In the real world, this fear often does more than anything else to keep the left in line on abortion. Hentoff noticed it in a friend of his, a civil libertarian who was worried about the Baby Doe cases. Apparently explaining an initial failure to act, the friend said:
"I've got to admit to you that it's because the only people who come out for these infants publicly are the right to life people, and I'm very careful about whom I get into bed with. I think they're kooks, and I don't like them. I don't like their politics. They're for Reagan [President Ronald Reagan]. So I didn't want to be in a position where I would be identified with them."
Hentoff added that his friend "woke up one morning and said: 'Damn it. This is either right or it's wrong. I don't care who's on my side as long as we agree on this particular issue.'"(78)
Let us hope that the ACLU will wake up one morning.
1. "ACLU Taps Veteran ACLU Leader as National Deputy Executive Director," press release, 31 July 2006, www.aclu.org.
2. Samuel Walker, In Defense of American Liberties: A History of the ACLU (New York, 1990), 5.
3. Thomas Sowell, "Civil Liberties Protection Prognosis," Washington Times, 1 April 1994, A-16.
4. Paul R. Mobley to Reason 22, no. 8 (Jan. 1991), 12-13.
5. William A. Donohue, Twilight of Liberty: The Legacy of the ACLU (New Brunswick, N.J., 1994), 1-5.
6. ACLU officials might object to my use of the term "unborn children"; yet some ACLU activists used this term in their early debates over abortion. But when Association for the Study of Abortion staff coordinated friend-of-the-court briefs for Roe v. Wade and Doe v. Bolton, "they kept careful watch over the language used in the briefs; for example, they substituted 'fetus' for 'baby.' They also coined the phrase 'pro-choice' rather than the more value-laden 'pro-abortion.' " Lee Epstein and Joseph F. Kobylka, The Supreme Court & Legal Change: Abortion & the Death Penalty (Chapel Hill, N.C., 1992), 171.
7. I am most grateful to the staff of the Seeley G. Mudd Manuscript Library, Princeton University, Princeton, N.J., for their assistance with my research in the ACLU Archives and for permission to quote from archives documents.
8. Harriet F. Pilpel, "Civil Liberties and the War on Crime," Paper presented at ACLU Biennial Conference, Boulder, Colo., 21-24 June 1964, 7-8, 2 & 2n., ACLU Archives, box 409, folder 15, Seeley G. Mudd Manuscript Library, Princeton University, Princeton, N.J. This and other documents from the ACLU Archives are quoted with permission of the Princeton University Library. See David J. Garrow, Liberty & Sexuality: The Right to Privacy and the Making of Roe v. Wade (New York, 1994) on the role of Pilpel and Guttmacher in legalizing abortion. On Guttmacher's eugenics involvement, see Eugenics Quarterly, 1955-1966. Pilpel apparently spoke at a 1970 conference cosponsored by the American Eugenics Society and a division of the Population Council. See her "Family Planning and the Law," Social Biology 18, supp. (Sept. 1971), S127-S133.
9. Tony Melendez and Mel White, A Gift of Hope (Lake Dallas, Tex., 1996), 103, 82, 104, 170; and Bryna L. Bates, "Born Without Arms, Virginia Woman Turns Life's Challenges into Achievements," Jet, 12 July 1999, 14-18.
10. Pilpel (n. 8), 12.
11. Alan Reitman, memo to Eleanor Norton, 7 July 1966, ACLU Archives, box 87, folder 15.
12. "Testimony of Harriet F. Pilpel, Esq. for the New York Civil Liberties Union," before Committee on Health, New York State Assembly, 7 March 1966, 2-7, ACLU Archives, box 1143, folder 25.
13. "The office," memo to Due Process Committee, 9 Dec. 1966; and "The office," memo to Due Process Committee, 7 Dec. 1966, incorporating William Kopit and Harriet F. Pilpel, "Abortion and the New York Penal Laws" , ACLU Archives, box 1145, folder 2. The Kopit-Pilpel paper made five statistical assertions--including the one about numbers of illegal abortions per year--that were cited only to outlines prepared by Pilpel but apparently not published. This was peculiar citation practice, to say the least.
14. U.S. Census Bureau, Statistical Abstract of the United States, 1999 (Washington, 1999), 91, Table 123.
15. Barbara J. Syska and others, "An Objective Model for Estimating Criminal Abortions and Its Implications for Public Policy," in Thomas W. Hilgers and others, eds., New Perspectives on Human Abortion (Frederick, Md., 1981), 164-181, 178.
16. Cynthia McKnight, Life Without Roe: Making Predictions About Illegal Abortions (Washington, 1992), 10-15. McKnight's study was published by the Horatio R. Storer Foundation, an affiliate of the National Right to Life Committee. The study is thoroughly documented.
17. Bernard N. Nathanson, Aborting America (Garden City, N.Y., 1979), 193. (NARAL, which has changed its name several times, is now called NARAL Pro-Choice America.) Nathanson added that: "Statistics on abortion deaths were fairly reliable, since bodies are difficult to hide, but not all these deaths were reported as such if the attending doctor wanted to protect a family by listing another cause of death."
18. Michael M. Gask to Alan Reitman, 25 Sept.1966, 2 & 5; and Joel Gora, memos to Mr. Reitman, 2 & 19 Oct. , ACLU Archives, box 1145, folder 1.
19. "The Office," memo to Due Process Committee, 6 Jan. 1967, incorporating paper by Benjamin S. DuVal, Jr., 1, 6 & 9; and "The Office," memo to Board of Directors, 8 Feb. 1967, 3-4, ACLU Archives, box 88a, folder 4.
20. ACLU Board of Directors, 14 Feb. 1967 minutes, 3-7, ibid.
21. Thomas L. Shaffer to John de J. Pemberton, 21 March 1967, and to editor of the Indianapolis Star, 20 March 1967, reprinted in "IV. Some Arguments Against Abortion," ACLU Archives, box 1145, folder 2.
22. Thomas L. Shaffer to Alan Reitman, 6 Nov. 1967, 1-2, ibid.
23. ACLU, "Abortion," 1976 Policy Guide of the American Civil Liberties Union, 230-231 [citing 25 Jan. 1968 board minutes & 25 March 1968 news release], Microfilming Corporation of America, "The American Civil Liberties Union: Update, 1974-1978," Reel 2; Will Lissner, "A.C.L.U. Asks End to Abortion Bans," New York Times, 25 March 1968, 35; Alan Reitman and Trudy Hayden, memo to Board of Directors [citing Dr. Tietze], 31 Oct. 1967, 7 ff., Microfilming Corporation of America, "American Civil Liberties Union Records and Publications, 1917-1975," Reel 25. Tietze was a member of England's Eugenics Society; see Eugenics Society, "List of Fellows and Members as at August 1957 (London, 1957), .
24. Eleanor Norton, memo to Alan Reitman, 5 Dec.1967, ACLU Archives, box 1145, folder 1.
25. Eleanor Norton, memo to John Fordon, 3 July 1968, ACLU Archives, box 1145, folder 2; Playboy Foundation, "Grant Allocations for Fiscal Year 1980-81 at 6/30/81" (Chicago, 1981), 3, and 1983 annual report, 8; Foundation Center (n. 45 below).
26. Samuel Walker (n. 2); Epstein & Kobylka (n. 6); Garrow (n. 8); Nadine Strossen, "The American Civil Liberties Union and Women's Rights," New York University Law Review 66, no. 6 (Dec. 1991), 1940-1961; and "The ACLU Reproductive Freedom Project," at www.aclu.org, accessed 1 Dec. 2000. On ACLU lobbying at the national level, see the same web site.
27. Brief for Appellants at 49, Doe v. Bolton, 410 U.S. 179 (1973). Briefs in this and other cases cited here are available at the U.S. Supreme Court Library, Washington, D.C.
28. Mary Meehan, "The Road to Abortion (II): How Government Got Hooked," Human Life Review 25, no. 1 (Winter 1999), 68-82 (especially 69-70 & 78-79 on race).
29. Aryeh Neier, interview by Thomas J. Balch, 3 Nov. 1979, in Balch's "Convincing the Courts on Abortion," Appendix,12-13, Paper for Prof. Neier's "Litigation and Public Policy" course, [New York University School of Law], Fall, 1979.
30. Brief for Appellees at 185, Harris v. McRae, 448 U.S. 297 (1980); and Norman Dorsen, ACLU Campaign for Choice fund-raising letter to "Dear Friend," n.d. [received by the writer on 29 Sept. 1979].
31. Samuel Walker (n. 2), 303-304; John Shattuck, memo to Executive Committee and Board of Directors, 14 Sept. 1977, 2, ACLU Archives, box 32, folder 6; ACLU Board of Directors, 24-25 Sept.1977 minutes, 3, ACLU Archives, box 32, folder 1.
32. Jay G. Sykes, "Farewell to Liberalism," Insight (Sunday magazine of the Milwaukee Journal), 8 Sept. 1974, 30-32; and ACLU Executive Committee, 30 July 1977 minutes, 3, ACLU Archives, box 117, folder 1. For other examples of dissent within the ranks, see the ACLU publication Civil Liberties, April 1970, 6; Nov. 1974, 7; Winter 1986, 2; Spring 1986, 2; Summer/Fall 1986, 13. See, also, Nat Hentoff, "A Heretic in the ACLU," Washington Post, 16 Aug. 1985, A-23.
33. ACLU Board of Directors, 4-5 March 1978 minutes, 15-16, ACLU Archives, box 33, folder 2.
34. "Reproductive Freedom Project Proposal, 1980," 4, ACLU Archives, box 382, folder 21.
35. Brief for American Public Health Association, American Civil Liberties Union and others as Amici Curiae at 4 & 31, Colautti v. Franklin, 439 U.S. 379 (1979). See the Colautti opinion at 388-389 on this point.
36. Samuel Walker (n. 2), 348.
37. Abortion Policy Committee, 14 Feb. 1986, minutes, 3 & 2, ACLU Archives, box 155, folder 7. I am indebted to Prof. Taub for her gracious assistance in the checking of one point related to the committee.
38. Special Committee Reviewing ACLU Abortion Policy, 19 May 1986, minutes, 6 & 11, ACLU Archives, box 155, folder 6.
39. Warren M. Hern, Curriculum Vitae, 1 March 1994, 30, Exhibit A, Hill v. Thomas, Case No. 93-CV-1984, Div. No. 2, District Ct., Jefferson Co., Colo.; and Warren M. Hern, telephone interview by the author, 10 Jan. 1997.
40. Nadine Taub, letter to "Dear Abortion Policy Committee Member," 15 March 1988, with attached excerpt from ACLU board minutes of Jan. , 3-17, ACLU Archives, box 166, folder 1; Emily Whitfield (ACLU Media Relations Director), memo to the writer, 24 Jan. 2001; www.aclu.org on the Internet.
41. Nat Hentoff, "Maryland's Odd Couple," Washington Post, 2 Feb. 1985, A-19, and "Abortion Protesters Have First Amendment Rights Too," ibid., 7 Feb. 1986, A-15; Samuel Walker, (n. 2), 349; Stefan Presser & Barry Steinhardt, "The ACLU and RICO," Washington Post, 26 May 1989, A-22.
42. Samuel Walker (n. 2), 54-55 & 87; and Jeffrey T. Leeds, "The A.C.L.U.: Impeccable Judgments or Tainted Policies?" New York Times Magazine, 10 Sept. 1989, 76.
43. ACLU Foundation Board minutes, 19 May 1984, 1-2, ACLU Archives, box 39, folder 3.
44. R.N.S. [Religious News Service], "ACLU in Ethical Bind Over Rescue Cases," World 6, no. 12 (27 July 1991), 17.
45. David Margolick, "Abortion-Rights Team Leaves A.C.L.U.," New York Times, 21 May 1992, A-20; "Reproductive Law Unit Splits from ACLU," Washington Post, 21 May 1992, A-23; "Center for Reproductive Law and Policy" [1999 annual report]; Foundation Center, Grants for Human/Civil Rights ([New York], 1999), passim; Foundation Center, "FC Search 4.0 (2000): The Foundation Center's Database on CD-ROM," 5 Feb., 2001. Benshoof's center obtained nearly ninety percent of its income from foundations in 1999. The ACLU has significant foundation support, but also receives income from its large membership.
46. Brief for American Civil Liberties Union, New York Civil Liberties Union, and others as Amici Curiae at 17 and brief for ACLU Foundation of Florida and others as Amici Curiae at 7-8, Schenck v. Pro-Choice Network, 519 U.S. 357 (1997); Frank J. Murray, "Divided ACLU Fights Pro-Lifers' Free-Speech Rights," Washington Times, 20 Oct. 1996, A-1 & A-5, and "'Bubble Zones at Clinics Rejected," ibid., 20 Feb. 1997, A-1 & A-6.
47. Brief for ACLU as Amicus Curiae, Hill v. Colorado, 120 S. Ct. 2480 (2000); Steve Chapman, "Turning a Right into a Muzzle," Washington Times, 7 July 2000, A-15. The decision also has grim implications for other protest groups and for labor unions. A worried AFL-CIO had filed an amicus brief noting that the Colorado law "entirely precludes normal handbilling and leafletting." (Brief for AFL-CIO as Amicus Curiae at 3, Hill v. Colorado.)
48. Brief for ACLU and others as Amici Curiae, Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993); Kevin Merida, "Doctor's Slaying Spurs Abortion-Rights Lawmakers," Washington Post, 15 March 1993, A-11; Ruth Marcus, "President Signs Clinic Access Law; Foes File Lawsuit," ibid. 27 May 1994, A-10; Freedom of Access to Clinic Entrances, 18 U.S.C., Sec. 248 (1994); "The ACLU's Role in Stopping Clinic Violence," 2-3, www.aclu.org ("Reproductive Freedom") on the Internet, 1 Dec. 2000. FACE also applies against those who block access to religious services or damage/destroy religious property.
49. Lawrence Speiser to "Dear Congressman," 2 Oct. 1970, reprinted in Congressional Record (6 Oct. 1970), vol. 116, pt. 26, 35212-35214; testimony of Antonio J. Califa in U.S. Senate, Committee on the Judiciary, Hearings on Proposed RICO Reform Legislation, 100th Cong., 1st Sess., 29 Oct. & 10 Nov. 1987, 316-317.
50. ACLU Reproductive Freedom Project, Preserving the Right to Choose: How to Cope with Violence and Disruption at Abortion Clinics (New York, 1986), 34-35; Ira Glasser, interview by the author, tape recording, New York, N.Y., 4 May 1988.
51. Presser & Steinhardt (n. 41); Ann Rodgers-Melnick and Janet Williams, "Protesters Fear More Racketeering Lawsuits," Pittsburgh Press, 7 May 1989, B-1 & B-5.
52. John Leo, "One Watchdog Missing in Action, U.S. News & World Report, 5 Nov. 1990, 23; Ira Glasser to ibid., 26 Nov. 1990, 6-7; Tony Mauro, "High Court Backs Anti-Abortion Protestors," LegalTimes.com, 28 Feb. 2006, www.law.com; and Kim Gandy, "Supreme Court Ends Protection Against Abortion Clinic Violence," 28 Feb. 2006, www.now.org.
53. Dershowitz, incidentally, supports legal abortion. For some of his criticisms of the ACLU, see Leo's column (n. 52); and Charles Oliver, "The First Shall Be Last?" Reason 22, no. 5 (Oct. 1990), 20-27. See, also, Nat Hentoff, "The ACLU Averts Its Eyes," Washington Post, 7 Aug. 1988, B-7, and "Two Cheers for the ACLU," ibid., 3 March 1990, A-25. Another interesting critique, by an ACLU life member, is Christopher Clausen, "Taking Liberties with the ACLU," New Leader 77, no. 8 (15-29 Aug. 1994), 12-13.
54. I asked the ACLU Media Relations Director for comment on specific criticisms by Leo, Dershowitz and Hentoff. She responded by saying: "The columnists you cite have in the past made public statements about the ACLU that turned out to be demonstrably untrue. We do not feel obligated to respond to false assertions that we have denied before..." She did not respond to the specific queries, nor send copies of the past denials. Whitfield, op. cit. (n. 40). This seems an odd way to deal with three veteran writers, two of whom (Dershowitz and Hentoff) are former ACLU board members and experts on civil-liberties issues. Hentoff, by the way, has praised the ACLU in cases where it has gone to the defense of abortion foes (n. 41).
55. ACLU Reproductive Freedom Project, "Abortion: A Fundamental Right Under Attack" (New York, n.d.), 10-11. The writer(s) did not define "human being."
56. Keith L. Moore and T. V. N. Persaud, Before We Are Born: Essentials of Embryology and Birth Defects (Philadelphia, 5th ed., 1998), 36, 39, 147-149; Keith L. Moore and others, Color Atlas of Clinical Embryology (Philadelphia, 1994), 1-2, 101,104; T. W. Sadler, Langman's Medical Embryology (Baltimore, 7th ed., 1995), 3; Ronan O'Rahilly and Fabiola Müller, Human Embryology & Teratology (New York, 2nd ed., 1996), 7-8 & 81-82. See, also, U.S. Senate, Committee on the Judiciary, Subcommittee on Separation of Powers, Hearings on The Human Life Bill, 97th Cong., 1st Sess., April-June 1981, vol. 1, 7-23; Dianne Nutwell Irving, "Philosophical and Scientific Analysis of the Nature of the Early Human Embryo" (Ph.D. diss., Georgetown University, 1991); and Dianne N. Irving, "When Do Human Beings Begin? 'Scientific' Myths and Scientific Facts," in Doris Gordon and John Walker, eds., Abortion and Rights, an issue of the International Journal of Sociology and Social Policy 19, nos. 3/4 (1999), 22-47 (available at www.L4L.org).
57. John Walker, "Power and Act," in ibid., 57.
58. Germain Grisez, Abortion: The Myths, the Realities, and the Arguments (New York, 1970), 305.
59. Doris Gordon, "Abortion and Rights: Applying Libertarian Principles Correctly," in Gordon & Walker (n. 56), 111 & 99.
60. John Walker, "Abortion and the Question of the Person," in Gordon & Walker, (n. 56), 52.
61. Gordon (n. 59), 111-112.
62. SOUL, "Equal Rights: Or How Society Protects Almost Each and Every Person" (Minneapolis, n.d.), 12; and Gordon (n. 59), 112.
63. Many, however, distort the history of religious teaching on abortion. See Mary Meehan, "Theologians and Abortion: Not Their Finest Hour," Human Life Review 12, no. 4 (Fall 1986), 50-74.
64. For examples of religious motivation among abolitionists, see: Betty Fladeland, James Gillespie Birney (New York, 1955); Katharine du pre Lumpkin, The Emancipation of Angelina Grimké (Chapel Hill, N.C., 1974); Carleton Mabee and Susan Mabee Newhouse, Sojourner Truth (New York, 1993); Benjamin P. Thomas, Theodore Weld (New York, 1973, reprint); and Bertram Wyatt-Brown, Lewis Tappan and the Evangelical War Against Slavery (New York, 1971, reprint).
65. Taylor Branch, Parting the Waters (New York, 1988) and Pillar of Fire (New York, 1998), passim.
66. Gordon (n. 59), 119 & 122. The libertarian movement, which was inspired by Ayn Rand's Objectivist philosophy, is broader than the Libertarian Party. Both movement and party are divided on abortion. (For Libertarians for Life publications, see www.L4L.org.)
67. Gordon (n. 59), 121, 120, 123.
68. Mary Krane Derr has done outstanding research in this area. See her "A Lost Source of Strength and Power: The Long Feminist Tradition of Non-Violent Response to Crisis Pregnancy," in Angela Kennedy, ed., Swimming Against the Tide: Feminist Dissent on the Issue of Abortion (Dublin, 1997), 12-27; and Mary Krane Derr and others, Pro-life Feminism: Yesterday and Today (New York, 1995).
69. Daphne de Jong, "The Feminist Sell-Out," New Zealand Listener, 14 Jan. 1978, reprinted in ibid., 171-174 (173).
70. See The American Feminist, the quarterly magazine of Feminists for Life of America, and www.feministsforlife.org.
71. De Jong (n. 69), 174.
72. U.S. Census Bureau (n. 14); Dr. Stanley K. Henshaw (of the Alan Guttmacher Institute), telephone interview by the author, 27 Feb. 2001. Dr. Henshaw estimated that there were 476,840 African American abortions in 1997.
73. Yvonne Frank Sims, untitled column in The Life Light, newsletter of the Life Education and Resource Network (L.E.A.R.N.), March 2000, 2.
74. Pamela Carr, "Which Way Black America? Anti-Abortion," Ebony 44, no. 12, (Oct. 1989), 134 ff.
75. The late Meg Greenfield, editorial page editor of the Washington Post, quoted in Nat Hentoff, Speaking Freely: A Memoir (New York, 1997), 291. See Hentoff's 1983-84 Village Voice articles on Baby Doe cases, reprinted in Human Life Review 10, no. 2 (Spring 1984), 73-104. He has since written many other articles on Baby Doe cases.
76. Hentoff, Speaking Freely (n. 75), 169-184; and Nat Hentoff, telephone interview by the author, 27 Feb. 2001.
77. Ibid., 174, 176-177 & 182-183, 180. Hentoff and others are deeply concerned about ACLU support for euthanasia and assisted suicide. In 1976 the ACLU said it recognized euthanasia--by act or omission--as "a legitimate extension of the right of control over one's own body." ACLU, 1977 Supplement to the American Civil Liberties Union Policy Guide (Lexington, Mass., 1978), 82.
78. Nat Hentoff, "Dialogue," interview by Jim Manney,
National Catholic Register, 15 July 1984, 6.