NAF TOOK A STAND/JUDICIAL NOMINEES/Claude Allen/NAF's Statement of Opposition

Fourth Circuit Court of Appeals

National Abortion Federation Opposes the Nomination of Claude Allen to the Fourth Circuit Court of Appeals

The National Abortion Federation opposes the nomination of Claude Allen to the Fourth Circuit of the United States Court of Appeals, which encompasses Maryland, Virginia, West Virginia, and the Carolinas. The Fourth Circuit, widely regarded as the most conservative appeals court in the country, would hear cases from two of the most virulently anti-choice states in the country: South Carolina and Virginia.¹ Allen's record reveals that in a leadership position, he fails to adequately enforce policies and respect established law when it comes to controversial health care decisions. NAF believes that the placement of Allen on this court would jeopardize the health of women and the rights of individuals to make health care decisions in the states of the Fourth Circuit.

Under Allen's Leadership, Virginia Medicaid Denied a Rape Victim Funding for an Abortion

In 1999, a twenty-nine year old Norfolk woman was raped. That rape resulted in a pregnancy. After seeking counseling from a local hospital and a Catholic priest, she made the decision to terminate the resulting pregnancy. Still emotionally distraught, she contacted her Medicaid office to make sure the abortion would be covered. Told by the agency that Virginia only funded abortion in cases of life endangerment and fearing that she would be forced to carry a pregnancy to term that was the result of rape, she turned to the National Abortion Federation for assistance.

NAF was shocked to learn of the flagrant misinformation given by Virginia Medicaid. Virginia, like all states, is required to abide by the Hyde Amendment, which mandates that Medicaid fund abortions in cases of rape and incest, as well as life endangerment. NAF then called upon Virginia to comply with federal requirements and stop denying funding to rape victims. The woman stated, "After all that I've been through, I can't believe my state would deny me the health care that I need. I also wonder about the other women who've been told the same thing, and didn't have anywhere else to turn. What right does the state have to treat me this way?"

Claude Allen, then the Secretary of Health and Human Resources in Virginia responded that the Hyde Amendment gave states the option of using Medicaid to pay for abortions either when a pregnancy threatens a woman's life, or in cases of rape and incest.² This interpretation was a clear violation of federal law and numerous cases interpreting the Hyde Amendment. Allen also responded " She's knocking on the wrong door. She should go to her local health department. They can help her."³

Virginia in fact did provide public funding for abortions due to rape and incest through local health department offices, but the Medicaid office in Norfolk either was not aware of this or deliberately withheld the information. The woman was turned away from the Medicaid office without receiving any notice or suggestion that funding was available elsewhere. Instead of looking for ways to improve this complicated and confusing system, Allen attacked the motives of NAF for helping this woman get the information and services that she needed. Specifically, Allen suggested that NAF was using her to make a political point instead of acting in her best interests.⁴

In 2000, NAF discovered that the Virginia Department of Health and Human Services still had not made efforts to clarify its complicated system and provide federally required funding. While assisting a mentally disabled rape victim, NAF tried to access information from the Department of Health, the Norfolk Health Department, Medicaid, Social Services, and the Commonwealth Attorney's office, each agency giving different and conflicting information, including that there would be a 45-day delay for having the abortion. NAF fears that the cavalier disregard for women's health and welfare that Claude Allen displayed during his leadership of the Virginia Department of Health and Human Services is a strong indicator of how he would adjudicate should he be confirmed to the Fourth Circuit.

Allen Abused His Position as Secretary of Virginia Health and Human Resources in Attempting to Overturn a Family's Decision to Terminate Life Support

In 1998, Allen used his position as a public official to try and prevent Michele Finn, whose husband had extensive brain damage, from removing her husband's feeding tube, in a gross violation of her family's right to medical autonomy and privacy. Her husband Hugh had been a colleague of Allen's. As Virginia's Secretary of Health and Human Resources, Allen went to Finn's family to ask them if they wanted to take legal action. After talking with Allen, Hugh's brother, Tom Finn, said, "We said no, but they're free to take any action that they feel they need to."⁵ Allen then fought for six weeks to prevent Finn's wife, his legal guardian, from exercising her right to remove the tube. A Virginia court found the government's actions so egregious that it held the state liable for nearly $13,000 in court costs and attorney fees.⁶

Allen's behavior in the Finn case was unconscionable. An individual who would abuse his or her position to interfere with a family's private medical decision is not fit for the federal bench. Recently, Michele Finn expressed her concern with Allen's nomination: "Judges must be able to set aside their own personal and moral convictions to uphold the law and protect the rights of citizens before the court."⁷ Claude Allen's actions as a public official during the Finn case have shown he is incapable of meeting this essential standard of our judicial system.

Conclusion

Allen's record as Secretary of Virginia Health and Human Resources reveals that he uses his political beliefs to justify his professional decisions. There is no reason to conclude that as a judge he would do otherwise. Given Allen's lack of judicial experience as well as precious little experience as a practicing attorney, his strident conservative beliefs are the main qualifier for his nomination. As Deputy Director of the U.S. Department of Health and Human Services, Allen played a role in revising the definition of "child" under the State Children's Health Insurance Program (SCHIP) to encompass "individuals in the period between conception and birth." This move was a blatant attempt to erode a woman's right to choose as numerous other ways exist to improve funding for women's prenatal care, such as waivers, and is an example of how extreme views can shape public policy in a way that conflicts with established law.

Claude Allen is yet another example in a long list of candidates with extreme views who is endorsed and supported by the Bush administration. For the reasons stated above, NAF urges the Senate to reject his nomination.

1. South Carolina and Virginia have both attempted to enact unconstitutional policies regarding reproductive health. Most recently, Virginia has enacted an abortion ban similar to the one struck down by the Supreme Court in Stenberg v. Carhart (2000). This case will surely come before the Fourth Circuit, which upheld a previous Virginia ban before the Supreme Court's decision in Carhart I. Nonconsensual drug testing of pregnant women in South Carolina was upheld by the Fourth Circuit, but then struck down by the Supreme Court in Ferguson v. City of Charleston.
2. Jeff Long, "Rape Case Could Lead to Abortion Showdown," Daily Press (Newport News, VA), June 19, 1999, Pg. A1.
3. Id.
4. Id.
5. Dale Hopper, "State considers next step after judge allows removal of feeding tube," Associated Press, Oct. 1, 1998.
6. Stephen Dinan, "Finn case judge faults Gilmore; Rules state, governor owe costs," Washington Times, Nov. 26, 1998, Pg. C4.
7. Michael Martz and Peter Hardin, "Judging Politics and His Principle: Court Nominee's Fitness Debated," Richmond Times Dispatch, May 12, 2003, Pg. A-1.

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