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Bench Memos

NRO’s home for judicial news and analysis.

This Day in Liberal Judicial Activism—September 5



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1969—By a vote of 4 to 3, the California supreme court rules in People v. Belous that the exception to California’s abortion ban for abortions “necessary to preserve [the] life” of the mother is “not susceptible of a construction … that is sufficiently certain to satisfy due process requirements without improperly infringing on fundamental constitutional rights.” On that flimsy basis (which the dissenters deride as a “negation of experience and common sense”), the majority invalidates the state’s abortion law. The decisive fourth vote is provided by a justice pro tem whose appointment to the case was engineered by California chief justice Roger Traynor.

2001—In what the dissenting judge describes as “a seminal case in more ways than one,” a divided panel of the Ninth Circuit—with, surprise!, Judge Stephen Reinhardt in the majority—rules that a prisoner serving a life term has a federal constitutional right to procreate that encompasses (absent the prison’s showing countervailing penological interests) the right to mail his semen from prison so that his wife can be artificially inseminated. An en banc panel of the Ninth Circuit later reverses that ruling by a 6-5 vote. 



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