Bench Memos

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Partial-Birth Abortion Oral Argument


The transcripts of the oral arguments in today’s related cases are available here and here, and I refer the interested reader to them rather than attempt to summarize the arguments.  I will note that Solicitor General Paul Clement did his usual outstanding job.  I’m not going to try to read the tea leaves, but I remain optimistic that a five-justice majority of the Court will uphold the federal ban on partial-birth abortion.


What particularly struck me during the entire two hours is how little of the discussion called for any exercise of the judicial faculties.  Whether and how a society should deal with the barbarity of partial-birth abortion is a question to which the Constitution does not speak and on which the justices have no special expertise beyond that of the citizenry.  It’s ludicrous to have the fine legal minds on the Court pondering these pure questions of policy.


What some of the justices do have are their own ignorant or peculiar biases.  Consider, for example, Justice Stevens the embryologist on human fetuses at 16 weeks:  “some of these fetuses … are only four or five inches long.  They are very different from fully formed babies.”  A human fetus at 16 weeks is far more fully formed than Stevens apparently realizes.  Of course, there are developmental differences between her and a newborn—just as there are between a newborn and, say, an 86-year-old man—but which ones are relevant for which purposes and why?  Justice Stevens the philosopher suggests an answer:  “viable fetuses”—unlike those at 16 weeks—are “just inches away from becoming a person.”  As one person in attendance e-mailed me, “Justice Stevens and his ilk believe that personhood is bestowed by geographic location or some magic dust that falls from the sky once the fetus or baby or whatever we are calling it these days is out of the womb.”  Stevens may hold his idiosyncratic views, but he has no right to impose them on the populace in the guise of constitutional law. 


Justice Ginsburg the newfound federalist also displayed remarkable chutzpah (or obtuseness):  “up until now, all regulation on access to abortion has been state regulation and this measure is saying to the states, like it or not, the Federal Government is going to ban a particular practice and we are going to take away the choice from the states, in an area where up until now it’s been open to the states to make those decisions.”  Does Ginsburg not realize that she joined the five-justice majority in Stenberg v. Carhart that deprived states of this very choice?  Further, as Justice Scalia riposted:  “The best example where [the federal] government has gotten involved in overriding what the states want to do is [Planned Parenthood v.] Casey.  It seems rather odd for this Court to be concerned about stepping on the toes of the states.” 


(Let me preempt further e-mails questioning why Scalia shouldn’t find the federal act beyond Congress’s power:  The act itself includes a jurisdictional element that limits its application to violations that are in or affect interstate commerce.  There may well be as-applied challenges to the scope of the act, but there is no reason to regard it as facially beyond Congress’s power.  In addition, plaintiffs, eager to preserve the Freedom of Access to Clinic Entrances Act, deliberately waived any argument based on lack of congressional power.)


Tags: Whelan


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