Alberto Gonzales: Three Questions the Attorney General Nominee Must Address

The Center for Reproductive Rights calls on the U.S. Attorney General nominee Alberto Gonzales to fully disclose his positions on reproductive rights issues during his Senate confirmation hearing. Specifically, the Center for Reproductive Rights urges him to declare that he won’t be an activist Attorney General undoing Roe v. Wade and to make clear whether he plans to defend federal laws that restrict the rights afforded by the landmark 1973 decision.

Attorney General’s Power over Women’s Access to Abortion

The Attorney General’s office holds enormous power over a woman’s right to reproductive self-determination. It is imperative that the women of this country know that the individual holding the office is committed to protecting that right. During his confirmation hearing, the current Attorney General, John Ashcroft, promised to enforce Roe but instead aggressively defended the “Partial Birth Abortion Ban Act of 2003,” a law that three federal courts have found blatantly violates the rights protected by the decision. He did so even though the U.S. Supreme Court declared an almost identical law unconstitutional nearly five years ago.

The Attorney General also determines how he or she will enforce federal laws that protect a woman’s right to an abortion, such as the Freedom of Access to Clinic Entrances Act (FACE). Under FACE, criminal and civil penalties are imposed on anyone who uses force or the threat of force to interfere with a woman’s access to reproductive health facilities. The attorney general has the authority to coordinate national investigations into clinic violence, decide when to prosecute, and support local law enforcement in litigation and in training against clinic violence.

Through the Solicitor General, the Attorney General represents the United States in the Supreme Court, determining which cases the government will ask the Court to review and crafting the positions the government will take before the Court. Indeed, attorneys general under earlier administrations have overseen the submission of legal briefs urging the Supreme Court to overturn Roe. The current administration has not yet had that opportunity, since there have been no abortion-related cases before the Court in the last four years. But now, there are cases percolating through the appellate court system that may wend their way to the Supreme Court as early as this year.

Alberto Gonzales’ Record on Reproductive Rights

While recent news articles have referred to private remarks made by Mr. Gonzales about possibly supporting Roe, his established record is limited and some aspects are troubling.

The only time he has been on the record about abortion is when he served as a Texas Supreme Court Justice. During that brief time, Mr. Gonzales ruled on ten cases involving a state law that requires teens either to notify their parents before having an abortion or establish before a court that they are mature enough to be granted a judicial bypass. In eight of those cases, he ruled against the teens. And he did so even in cases where the young women feared physical abuse from a parent or being banished from their homes.

In addition, he has expressed some personal discomfort with the judicial bypass provision in Texas. In one of the decisions in which the Court ruled in a teen’s favor, Mr. Gonzales wrote a separate opinion stating, “once we discern the Legislature’s intent we must put it into effect, even if we ourselves might have made different policy choices.”

In the end, neither Mr. Gonzales’ opinion in this case nor his decisions on the Texas Supreme Court provide much insight into how he will exert his power as Attorney General over a woman’s constitutional right to abortion.

Given the power the Attorney General’s office holds over women’s access to abortion and the uncertainty surrounding Mr. Gonzales’ positions, we call on the Senate Judiciary Committee to thoroughly address the following issues with the Attorney General nominee during his confirmation hearing:

• Will you advocate overturning Roe v. Wade? The Attorneys General under President Reagan and the first President Bush oversaw briefs filed by the Solicitor General in numerous cases in the Supreme Court arguing that Roe v. Wade was wrongly decided and should be overturned. As Attorney General, will you file briefs calling for a Roe reversal in abortion-related cases before the Supreme Court?


• Will you drop the appeals in the challenges to the federal abortion ban? Almost five years ago, in Stenberg v. Carhart, the Supreme Court ruled that a law restricting abortion that lacks an exception to protect the woman’s health is unconstitutional. The Carhart decision was itself based on numerous Supreme Court opinions since Roe, which require that a woman’s health remain a physician’s paramount consideration. Given that the “Partial Birth Abortion Ban Act of 2003” lacks any health exception for the woman and that supporters of the law have admitted that this makes the law unconstitutional under Carhart, as Attorney General, will you order the Justice Department to drop the appeals in the challenges to the Act?


• Did you support the Justice Department’s use of subpoenas against doctors and hospitals seeking private medical records of women who sought health care for their reproductive choices?

Learn more about the Bush Administration’s war on women.