Bench Memos

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Re: Noticing Greenhouse’s Opining


New York Times reporter Linda Greenhouse’s articles on the Supreme Court have been so marked for so long by her own ideological biases—why else do you suppose that Justice Blackmun gave her favored access to his Supreme Court papers?— that I have difficulty mustering more than a yawn over her recent overtly political statements at Harvard.  What I do find remarkable is the former Times ombudsman’s assertion that it is impossible “to find any trace of her views in her work.”


Well, gee, let’s look at her two paragraphs on the partial-birth abortion cases in her story today on the Court’s new Term.    

Greenhouse highlights what she regards as the leading case this Term on “abortion rights.”  Why not just “abortion”?  Greenhouse describes partial-birth abortion as “a surgical procedure that doctors use to perform abortions after about 12 weeks of pregnancy.”  Greenhouse chooses to leave her readers in the dark as to the essential nature of this barbaric act.  As the American College of Obstetricians and Gynecologists described it, in language that Justice Breyer quoted in his majority opinion in Stenberg v. Carhart, it includes the “breech extraction of the body excepting his head” and the “partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.”  Or, in lay language:  The abortionist dilates the mother’s cervix, extracts the baby’s body by the feet until all but the head has emerged, stabs a pair of scissors into the head, sucks out the baby’s brains, collapses the skull, and delivers the dead baby. 

Justice Breyer’s opinion in Stenberg also stated that partial-birth abortion is “used after 16 weeks at the earliest.”  I don’t know where Greenhouse gets her “12 weeks” figure, but that figure, and her sweeping statement that suggests that “doctors” widely use partial-birth abortion after that point, are part and parcel of the campaign from abortion groups to exaggerate the supposed threat that the federal Partial-Birth Abortion Ban Act of 2003 poses to “abortion rights.” 

Greenhouse’s claim that Justice Kennedy, who dissented in Stenberg, “has been particularly protective of the court’s role” in “defining the scope of constitutional rights” seems badly confused—conveniently so, it would seem, to try to put pressure on Justice Kennedy to change his position from Stenberg.  Specifically, Greenhouse appears to confuse the question of the scope of Congress’s power under section 5 of the 14th Amendment—a question that was at issue in City of Boerne v. Flores (the case involving Congress’s imposition on the states of the Religious Freedom Restoration Act), but is not presented by the federal partial-birth abortion cases—with the discrete question of the scope of Congress’s Commerce Clause power. 

I doubt very much that there has ever been a single article of Greenhouse’s on a case involving abortion that does not bear clear marks of her ideological biases.

Tags: Whelan


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