If you do not have a professional obligation, dear reader, I do not recommend you trouble yourself by reading Justice Ginsburg’s dissent in Gonzales v. Carhart.  But amid all its near-perfect loathsomeness, a couple of points are worth mentioning.

First, Justice Ginsburg has a touching faith in the “fact-finding” on the subject of partial-birth abortion undertaken by a handful of district courts that held trials of challenges to the federal act upheld today.  By contrast, she has nothing but disdain for the fact-finding of Congress on the same subject.  The matter in dispute between them is the necessity of a “health exception” to a ban on partial-birth abortions, an exception that would of course vitiate the rule altogether since it would leave the option of invoking the existence of an “exceptional case” to the physician who wishes to perform the prohibited procedure.  Ginsburg, of course, gives no reason for her readers to regard the fact-finding processes of trial courts to be superior to those of Congress.  And since the question is the making of public policy (something thinly disguised in the courts here by the flimsy veil of an alleged “constitutional right”), the natural presumption would seem rather to be the reverse of the one Ginsburg prefers.

Second, Ginsburg takes great offense at language in Justice Kennedy’s majority opinion that seems to be just, well, factual.  She is incensed that he refers to “abortion doctors,” instead of using “the titles of their medical specialties.”  But surely it economizes on verbiage and sacrifices no accuracy to say “abortion doctors” rather than “obstetrician-gynecologists and surgeons who perform abortions” (Ginsburg’s language) every time you wish to refer to these individuals.  If Kennedy had said “abortionist,” he would have been quite accurate and even more economical.  Likewise Ginsburg is aghast that a “fetus is described as an ‘unborn child,’ and as a ‘baby’” in Kennedy’s opinion–although the “baby” reference is not in Kennedy’s words but in those of witness testimony he quotes from before the Senate Judiciary Committee.  He did, to his credit, use “unborn child” as his own phrase–did Justice Ginsburg think that women’s wombs carried unborn seal pups?  These sorts of things Ginsburg regards as evidence of the Court’s–i.e., Kennedy’s–unconcealed “hostility to the right Roe and Casey secured.”  May it be so; but there is reason to doubt it is so, given the careful circumscription of Kennedy’s opinion.  What we do have evidence of is Justice Ginsburg’s hostility to plain truth, to intellectual honesty–and to the Constitution.