John Roberts's Pro-Life Spouse: The Relevance of Jane Roberts's Politics

By SHERRY F. COLB
Wednesday, Jul. 27, 2005

On July 19, a few weeks after Justice Sandra Day O'Connor's retirement, President Bush announced his nomination of Judge John Roberts to a seat on the United States Supreme Court. In some respects, Judge Roberts is an ideal candidate, from the President's standpoint. He is extremely smart and able, and he does not have much of a paper record to betray a bias on hot-button issues such as abortion. Though he argued repeatedly for overturning Roe v. Wade before the very Court he is poised to join,he did so for the Solicitor General's office and not on his own behalf. As a good lawyer -- which he unquestionably is -- Roberts would be quite capable of making arguments for positions that were not in fact his own.

All of this is true. Yet it is hard to escape the sinking feeling (or the sense of elation, depending on one's perspective) that accompanies an instinctive knowledge that this man will vote to overturn Roe as soon as he has the opportunity to do so. Perhaps we should call such instinctive knowledge "women's intuition," though the woman in question is the nominee's wife, Jane Sullivan Roberts.

The commitments of a candidate's spouse can be quite revealing, and Ms. Roberts served four years on the board of "Feminists For Life," a group that opposes abortion rights in the name of feminism.

Is Feminism Consistent with Opposition to Abortion?

Upon hearing about an organization opposing reproductive freedom called "Feminists for Life," one might immediately think of other Orwellian titles: "Jews for Jesus," "Swift Boat Veterans for Truth," and the current administration's "Clear Skies Initiative" come to mind. But is it fair to assume that Feminists For Life must be an enemy of feminism? Is opposition to abortion necessarily inconsistent with feminism, defined as the pursuit of equally safe, happy, and productive lives for men and women?

The answer is complicated. As the organization's website will tell you, many early feminists, including Susan B. Anthony and Elizabeth Cady Stanton, opposed abortion as an act of violence against a helpless unborn child. And a portion of the group's mission statement, "Women Deserve Better than Abortion," also on the website, suggests the beginning of an argument that an anti-abortion position could also be pro-woman.

What positive implications might this statement have?

To assert that women deserve better than abortion is to say that women who want to experience the good life should not have to consider abortion a mandatory path to that goal. A woman who becomes pregnant ought to feel free to bear her child without risking her career or endangering the financial prospects of her existing family.

Feminists For Life (FFL) correctly observes -- as many pro-choice feminists have in the past -- that our workplaces penalize pregnancy and maternity. In Geduldig v. Aiello, for example, the U.S. Supreme Court drew the preposterous conclusion that discrimination against pregnant women is not sex discrimination, because not all women are pregnant.

Fortunately, Congress has since passed the Pregnancy Discrimination Act, officially prohibiting employers from singling out pregnant women for inferior treatment. Still, for many women who seek an education or a demanding career, abortion can feel like the only alternative. Borrowing from FFL's mission statement, "abortion" in those instances "is a reflection that we have not met the needs of women."

If the workplace and our social safety networks were more supportive of women with children, fewer -- maybe many fewer -- women would even want an abortion. And for those who would not, abortion "choice" may truly sound like a cruel joke: a decision that they feel forced to make because the other options are even worse. FFL rightly criticizes the status quo in this regard.

Abortion "Guilt" and What It Says About FFL

To spread its feminist anti-abortion message, the FFL website includes an ad campaign targeting college students. The ads include two posters of young (though not fetal) babies, one white and one African-American, captioned "Is This the Face of the Enemy?" Another poster pictures a young woman, whom we are told was conceived during the rape of her mother, captioned, "Did I deserve the death penalty?" And a third poster shows an unhappy-looking student who has had an abortion, captioned "Been There. Done That. Hated It."

Interestingly, few of the FFL posters address feasible alternatives for women at risk for an undesired abortion. And crucially, not one poster refers to the dearth of safe, effective, and affordable contraception, a glaring omission if women are to be allowed to have sex even when they do not want to have a child.

In one of the essays on abortion supplied by FFL, the writer says the following of birth control: "Contraceptives fail, and half of all aborting women admit they weren't using them anyway. Thus, preventing unplanned pregnancies will involve a return to sexual responsibility. This means either avoiding sex in situations where a child cannot be welcomed, or being willing to be responsible for lives unintentionally conceived, perhaps by making an adoption plan, entering a marriage, or faithful child support payments."

Rather than encouraging the use of contraceptives (perhaps by the half of aborting women who admit they were not using them, and by their sexual partners), the FFL solution appears to be abstinence, marriage, or giving up children to adoption.

Child-support payments -- one solution offered by a poster captioned "If She's In Trouble He's In Trouble, Too" -- are only effective when the father is financially capable of supporting a child; the failure to pay child-support, in other words, can often be a product of poverty rather than male selfishness. Yet that reality does nothing to ease the burden of unwanted motherhood.

And what about women who do follow the abstinence regime but fall victim to rape? Must they remain pregnant too? FFL's response is unmistakable. The poster of the woman conceived in rape asks, "Did I deserve the death penalty?"

The content of this and several other posters (including "Is This the Face of the Enemy?") appears designed to induce feelings of guilt in women considering abortion, rather than to help them avoid unplanned pregnancies in the future or fight the forces that make childbearing potentially catastrophic to their lives as equal members of our society.

Is Guilt Not Appropriate?: Two Important Gaps in Guilt-Induction

An FFL member could, of course, respond that guilt is an appropriate emotion when one is considering killing a fellow human being, regardless of what has brought one to that place, and perhaps that is true. But there are two important gaps in this response.

First, the posters mislead the viewer by suggesting that babies and young women are the victims (or potential victims) of abortion. As I discussed in an earlier column, the overwhelming majority of abortions occur early in pregnancy, when a fetus or embryo is not what many people would consider a baby at all.

A lot of discomfort with the prospect of terminating a pregnancy results from the characteristics that a fetus is presumed to share with a baby, including the capacity to feel pain or pleasure and the general ability to have a sensory experience of one's environment. These are capacities that a late-term fetus has but that an early embryo or fetus lacks. Yet the pro-life movement -- including FFL -- does not appear to draw any such distinction. In another essay provided by FFL's website, for example, the writer encourages readers to think of the unique, developing child within her and says, "there are no generic zygotes."

It is true, of course, that the babies and young adult pictured in the posters would not have been born if their mothers had had abortions. However, it is also true that they would not have been born if their mothers had used contraception or, in the case of the young adult, if her father had not raped her mother. Does that mean that we should consider contraception murder or that when an ovulating woman is being raped, people should not intervene? Certainly not.

Many of us in the world would not be here if our parents had made even slightly different plans -- often having nothing to do with either sex or abortion. But this plain truth does not render the alternative scenarios reprehensible. An adult must say more, in other words, than that "I wouldn't be here if my mother had had an abortion" to make a persuasive argument that abortion is tantamount to a "death penalty" for that living adult, rather than a simple fortuity that would have prevented a baby from coming into being in the first place.

There is a second flaw in the "guilt is appropriate" contention, too, one that is perhaps more fundamental to the project of criticizing an organization that calls itself "feminists for life." It is that there is nothing particularly revolutionary or equality-oriented about making women feel guilty for wanting to terminate a pregnancy.

This is an old story of condemnation, perhaps dressed up in feminist garb and trendy photographs and expressions. It says that "women deserve better than abortion." But what about when "better" is not available yet? Should abortion nonetheless be a crime?

Does FFL Want Abortion To Be A Crime?

An explicit answer to this question is surprisingly difficult to locate on the FFL website. The mission statement does not mention the issue, and it cannot be found among the answers to "Frequently Asked Questions" either.

In reading the arguments presented on the website, however, the conclusion that the group supports criminal bans on abortion is virtually inescapable. And indeed, the President of FFL, Serrin Foster, acknowledged in an interview with the New York Times that "[r]eversing Roe v. Wade, the 1973 decision that recognized a constitutional right to abortion, is a goal."

If so, then why would the group be coy or evasive about saying explicitly in its college outreach materials or mission statement that it supports criminal laws banning all abortion?

Given the attention to detail evident on the website, it is hard to imagine that such a statement was left out by accident. The omission instead seems calculated to mislead -- to give the impression that FFL is a moderate and mainstream group on the issue of abortion, though the organization in fact supports laws that would force rape victims to undergo nine months of pregnancy and the pain of labor, no matter what their wishes might be.

Feminists For Real?

In calling itself a "feminist" group, FFL is therefore misleading as well, suggesting as the name does that the group's priority is improving the lives of women, rather than curtailing an option, whatever the circumstances.

Viewed in this light, the group's literature and its name come across as a velvet glove covering the iron fist of pro-life extremism.


What Does Any of This Have to Do With John Roberts?

John Roberts did not serve on the Board of FFL for four years; his wife did. Can't his wife do whatever she wants without implicating her husband? Shouldn't her work be, as Senator Edward M. Kennedy said, "out of bounds"?

Of course, in general, one spouse may do what she pleases, without necessarily reflecting on the views of the other spouse. There are even rare cases of couples (such as Mary Matalin and James Carville) holding high-profile jobs at political cross-purposes.

Jane Sullivan Roberts's leadership role in an anti-abortion group, however, sheds light on John Roberts's participation in writing briefs and arguing orally for the Supreme Court that Roe v. Wade should be overturned.

A picture emerges of a family that does not consider abortion -- either the procedure itself (however early in pregnancy or even when conception results from rape or incest) or the political issue -- a private, personal matter. It is instead a political matter on which advocacy at the highest levels is appropriate.

This picture should be an unsettling one for those who strongly support a woman's right to decide whether or not she will bear the burden of what Justices Kennedy, O'Connor, and Souter described in Planned Parenthood v. Casey as "suffering . . . too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture."

Judge Roberts may be an unknown quantity on some other issues, but on this one, it is clear that President Bush has deliberately selected a pro-life candidate and that a Justice Roberts would very likely work to turn back the clock on Roe v. Wade. Like the glossy appearance of "Feminists for Life" and its own cageyness about expressly stating its ultimate view on criminalizing abortion, there is every indication that Judge Roberts's seeming openness on women's issues is a glossy and misleading fiction as well.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark. She teaches Constitutional Criminal Procedure. Her earlier columns about abortion can be found in the archive of her work on this site.

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