Lawyer's lawyer, radical's radical: meet Obama DOJ nominee Dawn Johnsen.(Barack Obama)

PREGNANCY provokes a welter of feelings, physical and emotional. But does anyone really think of pregnancy as slavery? Apparently so: Indiana University law professor Dawn Johnsen, Pres. Barack Obama's nominee to head the Justice Department's Office of Legal Counsel.

Yale-educated and ACLU-trained, Johnsen already has done one tour of duty at OLC. She spent nearly six years there during the Clinton administration (1993-98), the last two as acting chief. OLC, a critically important agency, is the administration's lawyers' lawyer. Staffed by graduates of top law schools who are then polished by elite judicial clerkships, it authoritatively interprets the law for the attorney general and, in doing so, drives administration legal policy. OLC's credibility is derived from its reputation for apolitical, academic discipline--its commitment to informing policymakers of what the law is, rather than what staffers believe the law should be. Johnsen is, for that reason, a poor fit: She is an ideologue, and an unabashed one.

Her bizarre equation of pregnancy and slavery was not an off-the-cuff remark. It was her considered position in a 1989 brief filed in the Supreme Court. At the time, she was legal director of NARAL (then the National Abortion Rights Action League, since renamed NARAL ProChoice America). The case, Webster v. Reproductive Health Services, involved a Missouri law that did not ban abortion but restricted the use of state funds and resources for abortions. It's an obvious distinction, but one without a difference--at least according to Johnsen. Any restriction that makes abortion less accessible is, in her view, tantamount to "involuntary servitude" because it "requires a woman to provide continuous physical service to the fetus in order to further the state's asserted interest [in the life of the unborn]." In effect, a woman "is constantly aware for nine months that her body is not her own: the state has conscripted her body for its own ends." Such "forced pregnancy," she contends, violates the Thirteenth Amendment, which prohibits slavery.

The Court rejected this farcical theory, just as it has rejected other instantiations of Johnsen's extremism. On abortion and other issues dear to the Left, she is nothing short of a zealot. She insisted that, without government-provided abortion counseling, a large number of women would be left without "proper information about contraception." This, she claimed, would mean they "cannot be said to have a meaningful opportunity to avoid pregnancy." The usual rejoinder to such reasoning is that nobody is forcing these women to have sex. Johnsen sees it differently, writing that these "losers in the contraceptive lottery no more 'consent' to pregnancy than pedestrians 'consent' to being struck by drunk drivers."

In reputable private law offices and U.S. attorney's offices throughout the country, adult supervision would prevent such a lunatic analogy from finding its way into a letter to a lower-court judge, much less into a Supreme Court brief. Obama, however, is proposing that Johnsen be the adult supervision at Justice. He would fill a position calling for dispassionate rigor with a crusader for whom strident excess is habitual.

For Johnsen, no impediment to abortion-on-demand passes muster: She opposes 24-hour waiting periods, parental-consent requirements for minors, and laws against partial-birth abortion. In 2007, when it upheld the partial-birth ban in Gonzales v. Carhart, the Supreme Court clinically described the standard abortion procedure (i.e., the dismemberment and evacuation of the unborn child) to contrast it with the more barbaric partial-birth method. Johnsen's reaction--voiced while proposing "A Progressive Agenda for Women's Reproductive Health and Liberty" for the left-leaning American Constitution Society--was to complain that "every first-year law student's constitutional law casebook" now contains "gruesome descriptions designed to make abortions sound like infanticide." Moreover, as she declaimed in a 2006 oped opposing Samuel Alito's confirmation, opposition to all restrictions on abortion--not just acceptance of Roe v. Wade--should be a litmus test for judicial nominees. "The notion of legal restrictions as some kind of reasonable 'compromise'--perhaps to help make abortion 'safe, legal, and rare,'" she wrote, "proves nonsensical."

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