NRLC Expresses Confidence Supreme Court Nominee "Will Abide by the Text and History of the Constitution"

WASHINGTON (October 4, 2005)-Responding to the nomination of Harriet Miers to the Supreme Court, NRLC Executive Director David N. O'Steen, Ph.D., said today, "President Bush has an excellent record of appointing judges who recognize the proper role of the courts, which is to interpret the law according to its actual text, and not to legislate from the bench. We believe that Harriet Miers is another nominee who will abide by the text and history of the Constitution."

Background on Harriet Miers

According to published reports, Harriet Miers has been active since about 1980 in the Valley View Christian Church in Dallas.

The Dallas Morning News reported on October 4, 2005, "Ron Key, who has been Miers' pastor since the early 1980s, said his church is anti-abortion."

According to material posted this week on the Internet by Marvin Olasky (editor of World magazine), Nathan Hecht, a Republican member of the Texas Supreme Court, is an elder at the same church, and has been a close friend of Miers for decades. Hecht told Olasky "her personal views are consistent with that of evangelical Christians."

Hecht also said that he and Miers "went to two or three prolife dinners in the late 80s or early 90s."

In 1989, according to various press accounts, Miers donated $150 to Texans United for Life, a Dallas-based pro-life group, and she was listed as a "bronze patron" in the group's dinner program.

On October 4, 2005, the Dallas Morning News published a story based on an interview with Lorlee Bartos, who was Miers' campaign manager in 1989 when Miers ran, successfully, for an at-large seat on the Dallas City Council. The story reported that the two women discussed abortion once during that period, and quotes Bartos as saying, "She is on the extreme end of the anti-choice movement," and, "I think Harriet's belief was pretty strongly felt. I suspect she is of the same cloth as the president."

In 1993, when Miers was the president of the Texas State Bar, she helped lead an unsuccessful effort to rescind a pro-abortion stance taken by the American Bar Association in favor of a neutral position. Leonard Leo, executive vice president of the conservative Federalist Society, said, "The ABA is a place where there was an awful lot of liberal activism, so it took some courage for a woman to take the position she did." On October 4, 2005, the New York Times ran a story about Miers' role in the ABA fight, under the headline "Miers Was Leader in Effort Within Bar to Rescind Support for Abortion."

Roe and the Current Supreme Court

Some commentary on the current nomination incorporates incorrect information or assumptions about the legal status quo on abortion. On September 14, 2005, the Los Angeles Times published an eye-opening examination, written by its veteran Supreme Court reporter, on the true scope of the "right to abortion" created by the Supreme Court in Roe v. Wade and more recent rulings, which are still often badly misunderstood. The article also summarizes documents that reveal the internal processes at the Supreme Court that produced Roe v. Wade in 1973.

Among currently sitting Supreme Court justices, six (including Sandra Day O'Connor) have voted in favor of Roe v. Wade--that is, in support of the doctrine that abortion must be allowed for any reason until "viability" (about five and one-half months), and for "health" reasons (broadly defined) even during the final three months of pregnancy. Two justices (Antonin Scalia and Clarence Thomas) have voted to overturn Roe, and one (John Roberts) has not voted on the matter.

A refutation of the myth that the Supreme Court has been divided 5 to 4 on Roe v. Wade, issued by the Annenberg Center's FactCheck.org, is posted at http://www.factcheck.org/article176.html.

However, regarding the permissibility of a meaningful ban on partial-birth abortion, the current Court is split 5–3 in favor of partial-birth abortion (not counting Chief Justice Roberts, who has not voted on the issue). In 2000, Justice O'Connor voted to say that Roe v. Wade prevented bans on partial-birth abortion (Stenberg v. Carhart, 2000). On September 23, the Bush Administration's Solicitor General asked the Supreme Court to accept for review, this term, a lower-court ruling that struck down the federal Partial-Birth Abortion Ban Act.

On November 30, 2005, the Supreme Court will hear oral arguments in Ayotte v. Planned Parenthood of Northern New England, a case which will determine whether states can continue to require that a parent be notified before an abortion is performed on a minor daughter. Some observers believe that the case may be decided on a 5–4 vote, one way or the other.