Bench Memos

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Re: Washington Post Op-Ed on Partial-Birth Abortion Cases


It may be that the New York Times editorial manages to be even worse than the Washington Post’s.  In the New York Times’s topsy-turvy world, the possibility that the Court might undo its usurpation of the political processes (i.e., remove itself from its wrongful seized place in politics) and uphold the federal ban on partial-birth abortion somehow poses a threat to “the court’s own credibility as an institution removed from politics.” 


The editorial further asserts, “Even justices who oppose abortion rights … need to worry about how the court will look if the recent change in its membership produces a starkly different result on an issue so vital to women’s privacy and health.”  This assertion is at least triply flawed.  First, no justice needs to “oppose abortion rights” in order to recognize that the Constitution does not speak to the matter.  Second, a justice takes an oath to uphold the Constitution, not to mimic what a recently retiring justice would have done in a case.  The public will not be surprised that a change in membership often “produces a starkly different result,” and it should be grateful when the difference yields a more correct result.  Third, the idea that partial-birth abortion is “so vital to women’s privacy and health” is a remarkable claim.  Somehow the barbaric procedure that the Left used to assert never actually occurred is now to be regarded as essential.



Tags: Whelan


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