Analysis Law and Policy

With a Common Link of Violence, Anti-Choice Lobby Joins With NRA to Block Caitlin Halligan

Jessica Mason Pieklo

The failed nomination of Caitlin Halligan brought to attention the shared interests between anti-choice groups and the NRA.

There’s hardly a better snapshot of the modern-day conservative movement than the fight over the appointment of Caitlin Halligan. And it’s ugly. Anti-choicers joined with anti-gun reform advocates to defeat the nomination of Halligan just last week by threatening a filibuster.

President Obama originally nominated Halligan, general counsel for the Manhattan district attorney’s office and former solicitor general of New York, for a seat on the D.C. Circuit Court of Appeals. Halligan was supposed to fill the seat vacated by Chief Justice John Roberts’ Supreme Court appointment to the Supreme Court. Instead, the NRA and the anti-choice lobbies joined forces to block her.

Halligan is considered by all reasonable people to be a mainstream judicial candidate who even with the dysfunction in the Senate should have been approved. Born in Ohio, Halligan graduated with honors from Princeton, and then went on to earn a J.D. from Georgetown Law School. After graduation she landed two prestigious judicial clerkships. First for the United States Court of Appeals for the District of Columbia Circuit Judge Patricia Wald and then for Supreme Court Justice Stephen Bryer. She enjoyed broad support among members of both parties and in the legal community. Still, her nomination failed.

President Obama first nominated Halligan on September 29,2010, but the Senate refused to take up her nomination that year. Halligan was then re-nominated in January of 2011. The following month the Senate Judiciary Committee held a hearing on the nomination and voted 10 to 8 to let the nomination advance. In December of the same year, shortly before the end of the Congressional session, Senate Republicans filibustered the nomination.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

The fight was not over yet. Halligan was renominated in June of 2012 but two more attempts to gain cloture on her nomination failed, this despite the fact that a majority of Senators supported the nomination. Senate Republicans successfully blocked Halligan’s nomination again, and again President Obama renominated her. In the beginning of March, 2013 Senate Majority Leader Harry Reid again filed a motion to invoke cloture and again Republicans blocked the nomination. On March 22, 2013 Halligan requested President Obama withdraw her nomination to the court.

Opposition to her nomination came from two fronts, though one was decidedly more visible than the other. First was the National Rifle Association (NRA) which focused its ire almost completely on a single brief Halligan wrote while working with then-New York Attorney General Andrew Cuomo. Cuomo was looking for ways to make gun manufacturers legally responsible for a portion of the gun violence in New York and thus have them shoulder some of the public health costs associated with treating victims of gun violence. Naturally the NRA opposed the effort. Senate Republicans used Halligan’s work in pursuing a lawsuit against the gun-manufacturing industry to smear her as a “judicial activist” who would not “strictly interpret” the Constitution should she be confirmed and used that as one reason to block her nomination.

Opposition to Halligan’s nomination also came from the anti-choice community for her role in a 2002 case, NOW v. Scheidler, where as Solicitor General, she argued that the Racketeer Influenced and Corrupt Organizations Act (RICO) could apply to organizations like anti-choice groups who employ criminal ends to get to (mostly) non-monetary, rather than monetary goals.

The case has a long legal history that predates Halligan’s involvement, beginning in 1986 when, in the shadow of escalating violence against abortion providers, clinics, and patients, the National Organization for Women (NOW) brought a class action lawsuit on behalf of women seeking abortions and on behalf of various abortion clinics and providers seeking monetary damages and injunctions under the RICO, Hobbs, and the Travel Acts. NOW argued that the defendants, Joseph Scheidler and other members of the Pro-Life Action League, and specifically the Oklahoma Pro-Life Action Network were racketeering organizations, a functional “pro-life mafia” engaging in a conspiracy to prevent access to health care facilities providing abortion services. It was the first time the anti-choice groups had been the target of a class action lawsuit alleging they operated as a criminal gang. Needless to say, the case made waves.

The case snaked up and down the federal court circuits for years before it was eventually consolidated with another case, National Organization for Women et al. v. Operation Rescue. In the meantime the Freedom of Access to Clinic Entrances Act (FACE) went into effect, a federal law designed to prevent the exact kind of threats, coercion, and blockades that were at the heart of the lawsuit. The combined cases were argued not once, but three different times before the Supreme Court appearances, leading to a series of rulings culminating in a 2006 ruling by a unanimous Roberts court that the RICO and related criminal conspiracy statutes did not apply to acts of violence unrelated to robbery or extortion and that passage of the FACE Act suggested it was not Congress’ intent to have RICO statutes apply in situations like clinic blockades and patient/provider harassment.

One reason nominations to the D.C. Circuit get a little extra attention is because the court has jurisdiction over much of the federal government, so both parties give these nominations extra scrutiny. The D.C. Circuit is also considered a logical precursor to the Supreme Court. John Roberts, Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg all got their start there, which is why the Halligan nomination is about more than just the Halligan nomination. It’s about the Supreme Court.

As we’ve seen in this term alone, with the affirmative action case in Fisher v. Texas, the voting rights case in Shelby Co. v. Holder, the marriage equality cases of Hollingsworth v. Perry and U.S. v. Windsor, Chief Justice Roberts has proven to be a cultural conservative first and a federalist second. And so far it has been President Obama’s appointments, Justices Elena Kagan and Sonia Sotomayor, who’ve been the most forceful voices in opposition to Justices Roberts, Antonin Scalia, and Samuel Alito. With gun control and abortion rights the two next most likely culture wars issues to come before the high court, and with the possibility of at least one if not more appointments to the Supreme Court during Obama’s second term, it’s no wonder hard right conservatives saw the Halligan nomination as such a threat. Her nomination and her confirmation put on display the common thread that joins the groups who fought so hard against her nomination—violence.

Culture & Conversation Abortion

With Buffer Zones and Decline of ‘Rescues’ Came Anti-Choice Legal Boom, Book Argues

Eleanor J. Bader

University of Denver's Joshua Wilson argues that prosecutions of abortion-clinic protesters and the decline of "rescue" groups in the 1980s and 1990s boosted conservative anti-abortion legal activism nationwide.

There is nothing startling or even new in University of Denver Professor Joshua C. Wilson’s The New States of Abortion Politics (Stanford University Press). But the concise volume—just 99 pages of text—pulls together several recent trends among abortion opponents and offers a clear assessment of where that movement is going.

As Wilson sees it, anti-choice activists have moved from the streets, sidewalks, and driveways surrounding clinics to the courts. This, he argues, represents not only a change of agitational location but also a strategic shift. Like many other scholars and advocates, Wilson interprets this as a move away from pushing for the complete reversal of Roe v. Wade and toward a more incremental, state-by-state winnowing of access to reproductive health care. Furthermore, he points out that it is no coincidence that this maneuver took root in the country’s most socially conservative regions—the South and Midwest—before expanding outward.

Wilson credits two factors with provoking this metamorphosis. The first was congressional passage of the Freedom of Access to Clinic Entrances (FACE) Act in 1994, legislation that imposed penalties on protesters who blocked patients and staff from entering or leaving reproductive health facilities. FACE led to the establishment of protest-free buffer zones at freestanding clinics, something anti-choicers saw as an infringement on their right to speak freely.

Not surprisingly, reproductive rights activists—especially those who became active in the 1980s and early 1990s as a response to blockades, butyric acid attacks, and various forms of property damage at abortion clinics—saw the zones as imperative. In their experiences, buffer zones were the only way to ensure that patients and staff could enter or leave a facility without being harassed or menaced.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

The second factor, Wilson writes, involved the reduced ranks of the so-called “rescue” movement, a fundamentalist effort led by the Lambs of Christ, Operation Rescue, Operation Save America, and Priests for Life. While these groups are former shadows of themselves, the end of the rescue era did not end anti-choice activism. Clinics continue to be picketed, and clinicians are still menaced. In fact, local protesters and groups such as 40 Days for Life and the Center for Medical Progress (which has exclusively targeted Planned Parenthood) negatively affect access to care. Unfortunately, Wilson does not tackle these updated forms of harassment and intimidation—or mention that some of the same players are involved, albeit in different roles.

Instead, he argues the two threads—FACE and the demise of most large-scale clinic protests—are thoroughly intertwined. Wilson accurately reports that the rescue movement of the late 1980s and early 1990s resulted in hundreds of arrests as well as fines and jail sentences for clinic blockaders. This, he writes, opened the door to right-wing Christian attorneys eager to make a name for themselves by representing arrested and incarcerated activists.

But the lawyers’ efforts did not stop there. Instead, they set their sights on FACE and challenged the statute on First Amendment grounds. As Wilson reports, for almost two decades, a loosely connected group of litigators and activists worked diligently to challenge the buffer zones’ legitimacy. Their efforts finally paid off in 2014, when the U.S. Supreme Court found that “protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks.” In short, the decision in McCullen v. Coakley found that clinics could no longer ask the courts for blanket prohibitions on picketing outside their doors—even when they anticipated prayer vigils, demonstrations, or other disruptions. They had to wait until something happened.

This, of course, was bad news for people in need of abortions and other reproductive health services, and good news for the anti-choice activists and the lawyers who represented them. Indeed, the McCullen case was an enormous win for the conservative Christian legal community, which by the early 2000s had developed into a network united by opposition to abortion and LGBTQ rights.

The New States of Abortion Politics zeroes in on one of these legal groups: the well-heeled and virulently anti-choice Alliance Defending Freedom, previously known as the Alliance Defense Fund. It’s a chilling portrait.

According to Wilson, ADF’s budget was $40 million in 2012, a quarter of which came from the National Christian Foundation, an Alpharetta, Georgia, entity that claims to have distributed $6 billion in grants to right-wing Christian organizing efforts since 1982.

By any measure, ADF has been effective in promoting its multipronged agenda: “religious liberty, the sanctity of life, and marriage and the family.” In practical terms, this means opposing LGBTQ inclusion, abortion, marriage equality, and the right to determine one’s gender identity for oneself.

The group’s tentacles run deep. In addition to a staff of 51 full-time lawyers and hundreds of volunteers, a network of approximately 3,000 “allied attorneys” work in all 50 states to boost ADF’s agenda. Allies are required to sign a statement affirming their commitment to the Trinitarian Statement of Faith, a hallmark of fundamentalist Christianity that rests on a literal interpretation of biblical scripture. They also have to commit to providing 450 hours of pro bono legal work over three years to promote ADF’s interests—no matter their day job or other obligations. Unlike the American Bar Association, which encourages lawyers to provide free legal representation to poor clients, ADF’s allied attorneys steer clear of the indigent and instead focus exclusively on sexuality, reproduction, and social conservatism.

What’s more, by collaborating with other like-minded outfits—among them, Liberty Counsel and the American Center for Law and Justice—ADF provides conservative Christian lawyers with an opportunity to team up on both local and national cases. Periodic trainings—online as well as in-person ones—offer additional chances for skill development and schmoozing. Lastly, thanks to Americans United for Life, model legislation and sample legal briefs give ADF’s other allies an easy way to plug in and introduce ready-made bills to slowly but surely chip away at abortion, contraceptive access, and LGBTQ equality.

The upshot has been dramatic. Despite the recent Supreme Court win in Whole Woman’s Health v. Hellerstedt, the number of anti-choice measures passed by statehouses across the country has ramped up since 2011. Restrictions—ranging from parental consent provisions to mandatory ultrasound bills and expanded waiting periods for people seeking abortions—have been imposed. Needless to say, the situation is unlikely to improve appreciably for the foreseeable future. What’s more, the same people who oppose abortion have unleashed a backlash to marriage equality as well as anti-discrimination protections for the trans community, and their howls of disapproval have hit a fever pitch.

The end result, Wilson notes, is that the United States now has “an inconstant localized patchwork of rules” governing abortion; some counties persist in denying marriage licenses to LGBTQ couples, making homophobic public servants martyrs in some quarters. As for reproductive health care, it all depends on where one lives: By virtue of location, some people have relatively easy access to medical providers while others have to travel hundreds of miles and take multiple days off from work to end an unwanted pregnancy. Needless to say, this is highly pleasing to ADF’s attorneys and has served to bolster their fundraising efforts. After all, nothing brings in money faster than demonstrable success.

The New States of Abortion Politics is a sobering reminder of the gains won by the anti-choice movement. And while Wilson does not tip his hand to indicate his reaction to this or other conservative victories—he is merely the reporter—it is hard to read the volume as anything short of a call for renewed activism in support of reproductive rights, both in the courts and in the streets.

News Abortion

Anti-Choice Legislator Confirms Vote on House Conscience Protections (Updated)

Christine Grimaldi

The Conscience Protection Act would give health-care providers a private right of action to seek civil damages in court, should they face supposed coercion to provide abortion care or discrimination stemming from their refusal to assist in abortion care. The Act allows providers to sue not only for threats, but also for perceived threats.

UPDATE: July 14, 10 a.m.: The House passed the Conscience Protection Act Wednesday night in a largely party line 245-182 vote. Prior to floor consideration, House Republicans stripped the text of an unrelated Senate-passed bill (S. 304) and replaced it with the Conscience Protection Act. They likely did so to skip the Senate committee referral process, House Democratic aides told Rewire, expediting consideration across the capitol and, in theory, ushering a final bill to the president’s desk. President Barack Obama, however, would veto the Conscience Protection Act, according to a statement of administration policy.

The U.S. House of Representatives will vote next Wednesday on legislation that would allow a broadened swath of health-care providers to sue if they’re supposedly coerced into providing abortion care, or if they face discrimination for refusing to provide such care, according to a prominent anti-choice lawmaker.

Rep. Joe Pitts (R-PA) told Rewire in a Friday morning interview that House leadership confirmed a vote on the Conscience Protection Act (H.R. 4828) for July 13, days before the chamber adjourns for the presidential nominating conventions and the August recess. Pitts said he expects the bill to be brought up as a standalone measure, rather than as an amendment to any of the spending bills that have seen Republican amendments attacking a range of reproductive health care and LGBTQ protections.

The office of U.S. House Speaker Paul Ryan (R-WI) had no immediate comment.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Pitts’ remarks came during and after he hosted a “Forum on Conscience Protections” in the House Energy and Commerce Committee room to garner support for the bill.

Energy and Commerce Democrats boycotted the forum, a House Democratic aide told Rewire in a subsequent interview.

Legislation Builds on Precedent

Conscience protections are nothing new, the aide said. The latest iteration is a successor to the Health Care Conscience Rights Act (S. 1919/H.R. 940), which remains pending in the House and U.S. Senate. There’s also the Abortion Non-Discrimination Act (S. 50) and similarly named bills in both chambers. The fiscal year 2017 Labor, Health, and Human Services funding bill, which guts Title X and Teen Pregnancy Prevention grants, includes the Health Care Conscience Rights Act.

At the leadership level, Ryan’s recently released health-care plan mimics key provisions in the Conscience Protection Act. Both would give health-care providers a private right of action to seek civil damages in court, should they face alleged coercion or discrimination stemming from their refusal to assist in abortion care. The Conscience Protection Act goes a step further, allowing providers to sue not only for threats, but also for perceived threats.

The proposals would also codify and expand the Weldon Amendment, named for former Rep. Dave Weldon (R-FL), who participated in Pitts’ conscience forum. The Weldon Amendment prohibits states that receive federal family planning funding from discriminating against health-care plans based on whether they cover abortion care. Currently, Congress must pass Weldon every year as an amendment to annual appropriations bills.

Administration Action Provides Impetus

There hadn’t been much public dialogue around conscience protections with the exception of some anti-choice groups that “have really been all over it,” the aide said. The National Right to Life issued an action alert, as did the Susan B. Anthony List, to galvanize support for the Conscience Protection Act.

The relative silence on the issue began to break after the Obama administration took a stand on abortion care in June.

The U.S. Department of Health and Human Services’ Office for Civil Rights rejected anti-choice groups’ “right of conscience” complaint against California’s requirement that insurance plans must cover elective abortions under the definition of “basic health-care services.” Anti-choice groups had argued the California law violates the Weldon Amendment, but the administration found otherwise.

The California decision reinvigorated support for the Conscience Protection Act, the aide said. Ryan’s earlier health-care plan also specifically references the decision.

“We think this is going to be a big issue for us throughout the rest of this Congress,” the aide said.

Aide Outlines Additional Consequences

Beyond creating a private right of action and codifying Weldon, the Conscience Protection Act contains additional consequences for abortion care, the aide said.

The legislation would expand the definition of health-care providers to employers, social service organizations, and any other entity that offers insurance coverage, allowing them to raise objections under Weldon, the aide said. The aide characterized the change as a direct response to the California decision.

The legislation also broadens the list of objectionable services to include facilitating or making arrangements for abortion care, according to the aide.

The Republican-dominated House is likely to pass the Conscience Protection Act. But the aide did not expect it to advance in the Senate, which would all but certainly require a 60-vote threshold for such a controversial measure. More than anything, the aide said, the bill seems to be catering to anti-choice groups and long-time proponents of conscience clauses.

“The House oftentimes will pass these kinds of anti-choice proposals, and then they just go nowhere in the Senate,” the aide said.