Bench Memos

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“Painfully Awkward”? No, Just Plain Stupid


Professor Geoffrey Stone of the University of Chicago Law School has just posted his profoundly confused thoughts on the partial-birth abortion case.  Stone first misrepresents the ruling in the case.  If indeed there are exceptional circumstances in which partial-birth abortion is the safest method of abortion (the point, contrary to what Stone asserts, is hotly contested and, given the remarkable series of lies that opponents of the legislation have offered, their credibility is highly suspect), it is open to those so believing to show that and to carve out exceptions.  Those attacking the law tried to use a facial challenge to invalidate the law in its entirety. 


Stone then asks what explains the decision.  His answer:  The “painfully awkward observation” that “[a]ll five justices in the majority are Catholic” and “have failed to respect the fundamental difference between religious belief and morality.”  His charge is as offensive as it is baseless.  Consider:


1.  The five justices in the majority were not imposing their own religious beliefs.  They were deferring to the entirely reasonable moral judgments of the American people, manifested through bipartisan majorities in Congress.  Justice Kennedy’s majority opinion explains that the law serves the proper governmental objective of expressing respect for the dignity of human life and of protecting the integrity of the medical profession.  Stone may well disagree with those objectives, and he may well disagree that the law serves them, but it is absurd for him to contend that the five justices are imposing their own religious views when they let the democratically enacted law take effect.


2.  It is the four justices in dissent who have a consistent record of misconstruing the Constitution to impose their own substantive policy preferences.  Stone claims that the dissenters “all voted in accord with settled precedent” but that precedent is neither settled nor faithful to the Constitution.


3.  Stone presents his former boss, Justice Brennan, as a model of a Catholic justice

“separat[ing] his personal religious views from his views as a justice.”  From Stone’s account, one would think that Brennan reluctantly joined Roe v. Wade because the Constitution compelled him to.  That account is ridiculous at many levels.  Whatever Brennan’s “personal religious views,” he plainly favored abortion as a matter of policy, and it’s clear that he was the moving force behind the ludicrous Roe opinion.


Tags: Whelan


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