Bench Memos

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The Ginsburg Dissent in Carhart


The Federalist Society is sponsoring an unfolding electronic debate analyzing various aspects of the Partial Birth Abortion Act decisions by the Supreme Court.

My own contribution to this debate addressed not only the matters that we have all been discussing — stare decisis, facial challenges, etc. — but also Justice Ginsburg’s dissent attempting to reframe the abortion right as an “equality” right. Herewith an excerpt, and a link:

The thing that was a bit startling about the opinions was the attempted re-tooling of the general pro-abortion rationale in Justice Ginsburg’s dissent. Roe v. Wade and its progeny have long been a judicial fiat in search of a justification. Prior attempts to posit an abortion right in the fields of privacy and liberty, as the very bright Justice Ginsburg knows, lack intellectual rigor and judicial integrity, as many pro-choice legal scholars have themselves acknowledged. But the Ginsburg dissent is in a way, even less convincing. It might have been an amusing law review article 30 or 40 years ago, but it sounds strangely anachronistic to this female ear in 2007, and frankly, shocking as part of a Supreme Court opinion.

Liberty and equality are in a sense two sides of the same coin, constitutionally speaking: we are free men (I use the term “men” to mean humans; I count myself among such “men”) because we are equal under the Constitution, and we are equal because we are all free, in the important respects that our Constitution is able to vindicate those natural human freedoms.

But nothing in the Constitution itself, or any statute or judicial decision, can change the fact that women have babies. Men do not. It does not detract from female liberty or equality under the Constitution that only women can have babies. The Constitution cannot do anything about it. The hard-core feminist rhetoric that the “right” to have the brains vacuumed out of the skull of one’s own baby is the cornerstone of “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship” is gravely misguided as a matter of law and as a matter of ethics.

The full Federalist Society electronic debate on the Carhart decision is available here.

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