NAF TOOK A STAND/JUDICIAL NOMINEES/Carolyn B. Kuhl/NAF's Statement of Opposition

National Abortion Federation Statement of Opposition to Carolyn Kuhl

The National Abortion Federation opposes the nomination of Judge Carolyn B. Kuhl to the Ninth Circuit Court of Appeals. The Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, and is widely perceived to be one of the most influential appellate courts in the country. Judge Kuhl's adamantly anti-choice record as an attorney in the Reagan Justice Department and as a private attorney raises serious questions about her ability to fairly adjudicate questions of reproductive freedom that will come before her as a judge.

Judge Kuhl does not consider Roe v. Wade to be a valid decision

In 1985, Kuhl co-authored the brief for the United States in Thornburgh v. ACOG, a case involving several restrictive measures on abortion enacted in Pennsylvania. Kuhl argued in that brief that the basis for Roe v. Wade was flawed and "a source of such instability in the law that this Court should reconsider that decision and on reconsideration abandon it."¹ She also incorrectly stated that key factors leading to the decision in Roe "have no moorings in the text of our Constitution or in familiar constitutional doctrine."²

Kuhl further demonstrated her contempt for Roe when she urged the Court to abandon the principle of stare decisis, the doctrine of precedent, which requires courts to abide by former judicial decisions when the same points arise again in litigation.³ Her arguments in support of such a move are deeply troubling:

"[d]uring the decade since Roe v. Wade, the adversaries in the abortion debate have come back again and again, asking this Court to spin an ever-finer web of regulations. The adversaries are back again today. They are sure to return. Each time, the set of rules will get longer and more intricate. This is an inappropriate burden to impose on any court, or on any Constitution."

According to Kuhl, because Roe is a "flawed" decision, and a source of constant litigation and therefore a "focus of instability," it can be overturned because stare decisis is a "principle of stability" and should not apply to Roe.⁴

It is readily apparent that if Kuhl were confirmed by the Senate, she would actively use her position as an appellate court judge to roll back reproductive rights for women. The very idea that the principle of stare decisis, a cornerstone of our legal system, can be abandoned when decisions are controversial and result in subsequent litigation is ludicrous. Roe was correctly decided and is firmly entrenched in constitutional law, having been affirmed repeatedly by the Supreme Court, including in the Thornburgh decision.

Judge Kuhl opposes the provision of abortion information in family planning clinics

Kuhl continued to fight against legalized abortion in private practice when she authored a 1990 amicus brief for the American Academy of Medical Ethics (AAME).⁵ The brief for Rust v. Sullivan supported the "gag rule" on abortion information in federally funded family planning clinics. The rule was challenged by health care providers on free speech grounds.

In 1988, the Bush Department of Health and Human Services issued regulations revising the rules applying to federally funded family planning services under Title X.⁶ Prior to this, the regulations allowed women to receive non-directive information about abortion and referrals upon request.⁷ The new rules reinterpreted a longstanding provision of Title X barring the use of funds for programs where "abortion is a method of family planning."⁸ Contained in these revised rules was a radical provision that departed from previous regulations in that it prohibited the discussion of abortion as an option, even for those requesting information about abortion. This provision became known as the "gag rule." The new rules also prohibited any referrals to abortion providers and required the physical separation of abortion-related services from Title X activities.

In her analysis, Kuhl wrote that, without the prohibitions, such "viewpoint neutrality"⁹ would transform Title X into a "reproductive Tower of Babel" and suggested that allowing Title X facilities to discuss abortion would be tantamount to funding pro-smoking campaigns,¹⁰ even though the previous versions of the regulations had allowed clients to access abortion information. Kuhl also suggested that absent the physical separation requirement, facilities that also provided abortion care would willfully violate federal law and "subvert Title X by using Title X funds to solicit clients for abortions."¹¹ While the Supreme Court declined to overrule the regulations on free speech grounds, the regulations were never enforced nationwide and the Clinton administration, finding that the previous administration's guidelines had overstepped the wording of the statute, revised the rules largely along the lines of the pre-1988 regulations.

Kuhl's virulent hostility toward reproductive health care providers is prominently shown in this amicus brief. For over thirty years, Title X has been an incredibly valuable federal program, hardly a "reproductive Tower of Babel." As for her spurious allegation that Title X facilities which also provide abortion care misuse federal funds, the comments to the revised regulations make it clear that her statements were wholly unfounded, as no evidence supporting her accusations exists.¹² Kuhl's analysis of the issues in this case shows that her personal beliefs can cloud her legal judgment, as her arguments stray into the absurd.

Judge Kuhl is hostile to the principles of medical privacy

Though reproductive rights have not come before her as a judge, Kuhl issued a startling decision in an invasion of privacy lawsuit involving a medical setting. In Sanchez-Scott v. Alza Pharmaceuticals, Judge Kuhl dismissed a breast cancer patient's claim of invasion of privacy when a doctor brought a pharmaceutical sales representative with him into the examining room during the patient's breast exam. The plaintiff was led to believe that the sales representative was a medical colleague of the doctor. When she found out that he was a "drug salesman" from the doctor's receptionist, she became extremely upset, crying from shame and anger. On appeal, the appellate court reversed Kuhl's decision, finding the behavior to be a serious invasion of the patient's privacy.¹³ Her faulty reasoning in this case raises concern about how she might analyze other cases dealing with medical privacy, especially in the area of reproductive health care, given her stated hostility toward reproductive rights.

Conclusion

Unlike other Bush nominees to the Courts of Appeal who have no record of support for legalized abortion, Kuhl's record demonstrates that she is extremely hostile to a woman's right to choose a safe, legal abortion, or even the provision of non-directive information about a woman's constitutionally protected choice to have an abortion. Kuhl's opinions about choice are completely out of step with commonly-held views and well-established legal principles. Given Kuhl's overt lack of respect for the principle of stare decisis, her hostility towards Roe, her requests to the Court to overturn Roe, her belief that poor women using Title X clinics are not entitled to neutral information about abortion and her profound disrespect for reproductive health care providers who provide non-directive information to clients about abortion, the National Abortion Federation opposes her nomination, and urges the Senate to reject her nomination.

1. Brief for the United States as Amicus Curiae in Support of Appellants, Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 474 (1986) (Nos. 84-495, 84-1379).
2. Id.
3. The literal meaning of stare decisis is "to stand by things decided." Modern Legal Usage Copr. 1990 Bryan A. Garner, Oxford Univ. Press, Inc.
4. Brief for the United States as Amicus Curiae in Support of Appellants, Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 474 (1986) (Nos. 84-495, 84-1379).
5. AAME has also fought against the approval of mifepristone and against public funding for abortion in New York.
6. Title X, first enacted with bipartisan support in 1970, is a federal program solely devoted to providing family planning services for low-income men and women. Title X funds pay for gynecological exams, lab tests, screening services for STDs, HIV, breast cancer, cervical cancer, high blood pressure, and anemia. Title X funds also pay for contraceptive information and services, pregnancy testing, and community outreach.
7. 65 FR 41270.
8. 42 USCS § 300a-6.
9. Brief of the American Academy of Medical Ethics as Amicus Curiae in Support of Respondent, Rust v. Sullivan, 550 U.S. 173 (1991) (Nos. 89-1391, 89-1392).
10. Id.
11. Id.
12. Id. at 41275.
13. 86 Cal. App. 4th 365 (2001).

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