ALLIANCE FOR JUSTICE * AMERICANS FOR DEMOCRATIC ACTION *
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE *
COMMITTEE FOR JUDICIAL INDEPENDENCE * FEMINIST MAJORITY *
NARAL PRO-CHOICE AMERICA * NATIONAL ABORTION FEDERATION *
NATIONAL COUNCIL OF JEWISH WOMEN * NATIONAL FAMILY PLANNING
AND REPRODUCTIVE HEALTH ASSOCIATION * NATIONAL ORGANIZATION
FOR WOMEN * NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES * NOW
LEGAL DEFENSE AND EDUCATION FUND * PEOPLE FOR THE AMERICAN WAY
* PLANNED PARENTHOOD FEDERATION OF AMERICA * RELIGIOUS
COALITION FOR REPRODUCTIVE CHOICE * SEXUALITY INFORMATION AND
EDUCATION COUNCIL OF THE UNITED STATES *
VOTERS FOR CHOICE ACTION FUND
July 15, 2003
Dear Senator:
We the undersigned women’s rights, civil rights, and human rights organizations write
to express our strong opposition to the confirmation of D. Michael Fisher to the U.S.
Court of Appeals for the Third Circuit.
Once again, the Bush Administration has nominated an individual with an unequivocal
public record in opposition to a woman’s right to choose. Indeed, according to press
reports, opposition to abortion was the primary criterion used by the Bush
Administration in selecting this nominee.1 And, astonishingly, it appears that the Bush
Administration declined to nominate any of four women candidates recommended by
both Republican home-state Senators, because the women were not sufficiently antichoice.2
Fisher has publicly and repeatedly made clear his strong opposition to reproductive
rights, extending even to limiting access to contraception. He has stated that he believes
abortion should be illegal even in cases of rape and incest, allowing exceptions only to
save the life of the woman.3
Fisher believes that the government should play a significant role in a woman’s private
decision of whether to bear a child, and wants to limit access to abortion as much as
possible:
“My viewpoint is, abortion is wrong and every life is sacred, born or unborn.
And I think it’s a moral tone, it’s a policy that state government needs to promote
that will not only promote that belief, but also make sure that people understand
that abstinence is the best choice. All of that taken together is what’s going to
reduce the number of abortions in this state.”4
1
“[A]bortion is becoming no more than just a form of family planning by those
people who are seeking it. . . . The more accessible abortions are—there’s no
question in my mind—the stronger the likelihood there is a mother will seek that
alternative first before looking at other alternatives. . . . [It is] my belief that all
life is sacred.”5
As a state legislator, Fisher voted for the Pennsylvania Abortion Control Act, which
required biased counseling of women seeking abortions, a 24-hour waiting period, and
spousal notification and parental consent, and imposed reporting requirements on
facilities that perform abortions.6 The spousal notification portion of this Act was
declared unconstitutional in Planned Parenthood of Southeastern Pennsylvania v. Casey.7
Fisher also has repeatedly used his public positions to advance his personal anti-choice
agenda:
•
As Attorney General of Pennsylvania, Fisher signed on to an amicus curiae brief in
Stenberg v. Carhart,8 asking the Supreme Court to uphold a Nebraska law that
banned safe abortion procedures.9 Fisher signed on to this brief even though
Pennsylvania had not adopted similar legislation. The Supreme Court struck down
the Nebraska law, finding that it constituted an “undue burden” on the right to
choose and it lacked sufficient protections for women’s health.
•
Fisher testified before the U.S. Senate in support of the Child Custody Protection Act,
which would subject to criminal prosecution an aunt, grandmother or others who
accompany a young woman across state lines for an abortion.10
•
As Attorney General, Fisher personally presented the oral argument contesting
abortion rights claims raised by the defendant in the case Commonwealth v. Hartford,11
in which a woman was prosecuted for accompanying her son’s teenage girlfriend
across state lines to obtain an abortion.12
•
While serving on the Pennsylvania Board of Pardons, Fisher voted to deny a pardon
to a man who was convicted and served time for assisting a female friend to obtain
an abortion in 1961,13 although he later changed his vote following critical editorials
and letters.14
Fisher’s opposition to reproductive rights extends to contraception as well. He has
stated that he opposes state legislation providing funding for contraceptive services or
even assuring that health plans cover contraception equally with other prescription
drugs.15 Fisher also supported public health care funding for religious groups that
would have denied women access to family planning services.16
Furthermore, the Fisher nomination will raise serious concerns for anyone concerned
about the separation of church and state,17 gay and lesbian equality,18 or the death
penalty.19 And on the issue of civil rights, Fisher holds the remarkable distinction
2
among President Bush’s nominees of having been found by a jury to have violated the
federal civil rights of state employees, while his nomination was being vetted by the
White House. A Pennsylvania jury assessed $100,000 against him for maliciously or
wantonly violating the civil rights of two narcotics agents who were transferred after
they refused to back off of an investigation.20 Apparently, this is not a factor for the
White House since he was nominated to the Third Circuit less than three months after
the juryʹs decision. A Fisher spokesman said he would appeal21 – an appeal that of
course would be heard by the Third Circuit, the very court to which Fisher has been
nominated.
Like other anti-choice nominees from the Bush Administration, Fisher will likely recite
the standard pledge – that he will follow the settled law of Roe v. Wade and Planned
Parenthood of Southeastern Pennsylvania v. Casey. The Senate must not be misled by this
facile formulation of the role of lower courts in protecting a woman’s right to choose.
Judges appointed by anti-choice presidents have narrowly construed the standard of
review required by Casey to uphold more and more restrictions on the right to choose,
and the Supreme Court rarely takes review of these cases. A review of reproductive
rights cases since Casey demonstrates that appellate judges appointed by anti-choice
presidents are four times more likely than other judges to uphold restrictions on the
right to choose.22 The result is that more and more burdens on this fundamental right
are being upheld. If this trend continues, the right to choose will become illusory for all
but the most privileged of women.
For these reasons, we urge the Senate to reject the confirmation of D. Michael Fisher to
the U.S. Court of Appeals for the Third Circuit.
Sincerely,
Nan Aron
President
Alliance for Justice
Eleanor Smeal
President
Feminist Majority
Amy Isaacs
National Director
Americans for Democratic Action
Kate Michelman
President
NARAL Pro-Choice America
Rev. Barry Lynn
Executive Director
Americans United for Separation of
Church and State
Vicki Saporta
President & CEO
National Abortion Federation
Susan Lerner
Chair
Committee for Judicial Independence
Marsha Atkind
President
National Council of Jewish Women
3
Judith M. De Sarno
President & CEO
National Family Planning and
Reproductive Health Association
Gloria Feldt
President
Planned Parenthood Federation of
America
Kim A. Gandy
President
National Organization for Woman
Rev. Carlton W. Veazey
President and CEO
Religious Coalition for Reproductive
Choice
Judith L. Lichtman
President
National Partnership for Women &
Families
Tamara Kreinin
President and CEO
Sexuality Information and Education
Council of the United States
Kathy Rodgers
President
NOW Legal Defense and Education
Fund
Amy Drayer
Interim Executive Director
Voters For Choice Action Fund
Ralph G. Neas
President
People For the American Way
4
Editorial, Fisher as an appeals judge; Attorney general has done yeoman job, but selection shouldn’t be
based mainly on his abortion position, The Harrisburg Patriot, Apr. 30, 2003 at B12 (“What we find
perplexing – and more than just a little disturbing – is that the abortion issue was put forward by
the Bush Administration as the sole litmus test.”); see also, Peter L. DeCoursey, Fisher nominated
to 3rd Circuit Court; He asks Rendell to support him in U.S. Senate hearings, The Harrisburg Patriot,
Apr. 29, 2003 (“Statewide GOP sources said Bush insisted on a nominee who was likely to be
confirmed and opposed abortion.”)
2 Gar Joseph, Ball in Fisher’s court to replace judge; PA. Senators Want A Woman After White House
Says It Couldn’t Fin[d] One, Philadelphia Daily News, Apr. 11, 2003, at p. 12.
3 Pennsylvania Catholic Conference, Primary Election 2002: Candidates for Governor and Lieutenant
Governor Answer Pennsylvania Catholic Conference Questionnaire, Viewpoint: Newsletter of the
Pennsylvania Catholic Conference (Vol. 18, Issue 1), available at
http://www.pacatholic.org/election%20archive/primary%202002.pdf (last visited June 5, 2003);
Pennsylvania Catholic Conference, General Election 2002: Candidates for Governor and Lieutenant
Governor Answer Pennsylvania Catholic Conference Questionnaire, Viewpoint: Newsletter of the
Pennsylvania Catholic Conference (Vol. 18, Issue 3), available at
http://www.pacatholic.org/election%20archive/General%202002.pdf (last visited June 5, 2003).
4 WITF Debate Transcript, Mike Fisher and Ed Rendell (Oct. 24, 2002), available at
http://www.issuespa.net/docs/pdf/10-24-Debate-Transcript.pdf (last visited June, 4, 2003).
5 Pennsylvania Catholic Conference, Gubernatorial Interviews: Primary Election 2002, Jan. 28, 2002,
available at http://www.pacatholic.org/election%20archive/fisher.htm (last visited June 2, 2003).
6 18 Pa. Cons. Stat. §§3201-15; National Jewish Democratic Center, Voter Guide: Pennsylvania
Governor (Nov. 1, 2002), at http://www.njdc.org/political.php (last visited June 4, 2003).
7 505 U.S. 833 (1992).
8 530 U.S. 914 (2000).
9 Brief of Amici Curiae Virginia et al., Stenberg v. Carhart, 530 U.S. 914 (2000) (No. 99-830).
10 S. 1645, 105th Cong. (1998); Restricting Abortions for Minors: Written Testimony Before the U.S.
Senate Judiciary Committee on “Child Custody Protection Act” – S. 1645, 105th Cong. (May 20, 1998)
1998 WL 12760400 (statement of Mike Fisher, Attorney General, Commonwealth of
Pennsylvania); CNN AllPolitics.com, Judiciary Committee Considers Measure To Restrict Teen
Abortions (May 20, 1998), available at
http://www.cnn.com/ALLPOLITICS/1998/05/20/teenage.abortion (last visited June 4, 2003).
11 707 A.2d 549 (Pa. Super. Ct. 1997).
12 Office of Attorney General, Commonwealth of Pennsylvania, Year in Review 1997 (date
unknown), available at http://www.attorneygeneral.gov/year97/appeallegalservsign.cfm (last
visited June 3, 2003).
13 Westchester Coalition for Legal Abortion, Inc., Pardon Denied for Aiding Abortion in 1961 (date
unknown), available at http://www.wcla.org/99-spring/pardon.html (last visited June 3, 2003).
14 Charles Thompson, Tobacco settlement tops Fisher’s achievements, The Harrisburg Patriot, Oct. 29,
2002.
15 Pennsylvania Catholic Conference, Primary Election 2002: Candidates for Governor and Lieutenant
Governor Answer Pennsylvania Catholic Conference Questionnaire, Viewpoint: Newsletter of the
Pennsylvania Catholic Conference (Vol. 18, Issue 1), available at
http://www.pacatholic.org/election%20archive/primary%202002.pdf (last visited June 5, 2003).
1
5
Candidates Questionnaire—2002 Primary Election, Archdiocese of Philadelphia, at
http://www.archdiocese-phl.org/opaweb/02primary/gov-r.htm (last visited July 12, 2002).
17 For example, Fisher supports posting the Ten Commandments in public schools, National
Jewish Democratic Center, Voter Guide: Pennsylvania Governor (Nov. 1, 2002), available at
http://www.njdc.org/political.php (last visited June 4, 2003), and publicly funded vouchers for
parochial schools. Pennsylvania Catholic Conference, Gubernatorial Interviews: Primary Election
2002, Jan. 28, 2002, available at http://www.pacatholic.org/election%20archive/fisher.htm (last
visited June 2, 2003); Brief of Amici Curiae Florida et. al., Zelman v. Simmons-Harris, 536 U.S. 639
(2002) (No. 00-1751).
18 Fisher has stated that he opposes the provision of benefits to same-sex partners and opposes
legislation allowing gay lesbian couples to adopt children. Pennsylvania Catholic Conference,
Primary Election 2002: Candidates for Governor and Lieutenant Governor Answer Pennsylvania Catholic
Conference Questionnaire; WITF Debate Transcript, Mike Fisher and Ed Rendell, (Oct. 24, 2002),
available at http://www.issuespa.net/docs/pdf/10-24-Debate-Transcript.pdf (last visited June, 4,
2003). (“I believe very strongly that . . . same-sex benefits are not appropriate under our
structure and not appropriate under our law.”) He has also refused to support legislation
supported by other Pennsylvania Republicans to extend the stateʹs hate crimes law to protect
gays and lesbians, and proposed legislation to specifically prevent gays and lesbians from
participating in St. Patrickʹs Day parades in the state, referring to gay activists as a ʺsmall and
biased band of bigots.ʺ James J. Eisenhower, Hate-Crime Push Gets New Look, Harrisburg Patriot,
May 27, 1999.
19 As a state representative, Fisher co-authored Pennsylvania’s current death penalty statute. He
has said, “I’ve fought since then to make sure it’s been enforced. It’s been frustrating because of
all the delays and hurdles thrown up by the courts.” Chris Osher, Views on abortion issue split
Rendell, Fisher, Pittsburgh Tribune-Review, Oct. 28, 2002, available at
http://www.pittsburghlive.com/x/tribune-review/election/governor/s99317.html (last visited June
2, 2003). Fisher has opposed a moratorium on executions, opining that ʺcapital cases already are
heavily scrutinized.ʺ “Rendell, Fisher oppose death penalty halt,” Phila. Daily News, March 6, 2003,
at 26. Fisher is apparently not troubled by the fact that African Americans in Pennsylvania make
up 62% of death row inmates, despite constituting only about 10% of the population; he said that
he has seen “no statistical evidence that has indicated that someone of color was convicted
because of race.ʺ Lamar Williams, “Gov. expected to veto death penalty ruling,” Phila. Tribune, June
7, 1994.
20 Judgment in a Civil Case, Micewski v. Fisher, 3:00CV-0521, (M.D.Pa. Feb. 12, 2003; Pete Shellem,
2 agents win $1.5 million in suit against Fisher, 4 aides, The Patriot-News, Feb. 12, 2003.
21 Pete Shellem, 2 agents win $1.5 million in suit against Fisher, 4 aides, The Patriot-News, Feb. 12
2003.
22 NARAL Pro-Choice America, Judges and Choice, May 9, 2003, available at
http://www.naral.org/facts/bush_judicial_nom_study.cfm.
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