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Bench Memos

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Alito and the Blackwell Case



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I suspect that the distortions of Alito’s record in abortion cases will not come only from the Left. In particular, there appear to be some pro-lifers who have misplaced concerns about his vote in a 1995 case involving Medicaid funding of abortion, Elizabeth Blackwell Health Center for Women v. Knoll. As I will explain more fully in a subsequent post, the divide between the majority opinion (which Alito joined) and the dissent turned entirely on a threshold question of administrative law that had nothing to do with abortion. The majority opinion took exactly Scalia’s position on this question of administrative law, and I believe that Scalia would have voted exactly as Alito did.

In short, this case should be of no concern to those, pro-life or not, who recognize that the role of a judge is to say what the law means, not to indulge his own policy preferences.



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