July 15, Dear Senator:

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1 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

2 [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

3 among 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 appeal 21 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 Alliance for Justice Amy Isaacs National Director Americans for Democratic Action Rev. Barry Lynn Executive Director Americans United for Separation of Church and State Susan Lerner Chair Committee for Judicial Independence Eleanor Smeal Feminist Majority Kate Michelman NARAL Pro-Choice America Vicki Saporta & CEO National Abortion Federation Marsha Atkind National Council of Jewish Women 3

4 Judith M. De Sarno & CEO National Family Planning and Reproductive Health Association Kim A. Gandy National Organization for Woman Judith L. Lichtman National Partnership for Women & Families Kathy Rodgers NOW Legal Defense and Education Fund Gloria Feldt Planned Parenthood Federation of America Rev. Carlton W. Veazey and CEO Religious Coalition for Reproductive Choice Tamara Kreinin and CEO Sexuality Information and Education Council of the United States Amy Drayer Interim Executive Director Voters For Choice Action Fund Ralph G. Neas People For the American Way 4

5 1 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 3 rd 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 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 (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 (last visited June 5, 2003). 4 WITF Debate Transcript, Mike Fisher and Ed Rendell (Oct. 24, 2002), available at (last visited June, 4, 2003). 5 Pennsylvania Catholic Conference, Gubernatorial Interviews: Primary Election 2002, Jan. 28, 2002, available at (last visited June 2, 2003) Pa. Cons. Stat ; National Jewish Democratic Center, Voter Guide: Pennsylvania Governor (Nov. 1, 2002), at (last visited June 4, 2003) U.S. 833 (1992) U.S. 914 (2000). 9 Brief of Amici Curiae Virginia et al., Stenberg v. Carhart, 530 U.S. 914 (2000) (No ). 10 S. 1645, 105 th Cong. (1998); Restricting Abortions for Minors: Written Testimony Before the U.S. Senate Judiciary Committee on Child Custody Protection Act S. 1645, 105 th Cong. (May 20, 1998) 1998 WL (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 (last visited June 4, 2003) A.2d 549 (Pa. Super. Ct. 1997). 12 Office of Attorney General, Commonwealth of Pennsylvania, Year in Review 1997 (date unknown), available at (last visited June 3, 2003). 13 Westchester Coalition for Legal Abortion, Inc., Pardon Denied for Aiding Abortion in 1961 (date unknown), available at (last visited June 3, 2003). 14 Charles Thompson, Tobacco settlement tops Fisher s achievements, The Harrisburg Patriot, Oct. 29, 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 (last visited June 5, 2003). 5

6 16 Candidates Questionnaire 2002 Primary Election, Archdiocese of Philadelphia, at (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 (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 (last visited June 2, 2003); Brief of Amici Curiae Florida et. al., Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (No ). 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 (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, 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 (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, 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, Pete Shellem, 2 agents win $1.5 million in suit against Fisher, 4 aides, The Patriot-News, Feb NARAL Pro-Choice America, Judges and Choice, May 9, 2003, available at 6