Donald Trump told Mark Halperin yesterday that his sister, a federal judge, would be a “phenomenal” Supreme Court justice. He also said that “we will have to rule that out now, at least.”
If he ever becomes president, let’s hope he rules it out permanently. Maryanne Trump Barry came up in my book The Party of Death for writing one of those heated judicial decisions in favor of giving constitutional protection to partial-birth abortion. She called a New Jersey law against it a “desperate attempt” to undermine Roe v. Wade. It was, she wrote, “based on semantic machinations, irrational line-drawing, and an obvious attempt to inflame public opinion instead of logic or medical evidence.” It made no difference where the fetus was when it “expired.”
Laws against partial-birth abortion had strong bipartisan support. They were attempts to mark an outer limit to the abortion right of Roe. If unborn children could not be protected within the womb, could they at least be protected when partway out? That would be illogical, said Judge Barry. But if the location of fetal death does not matter, then it could hardly matter if the child was all the way outside the womb. Laws against infanticide, too, must be dismissed as irrational line-drawing. The intellectual architect of the Born-Alive Infants Protection Act, Hadley Arkes, mentions Judge Barry’s decision in his book on the origin of that law, explaining that it was in part designed to head off the dangerous implications of such rulings.
The Supreme Court eventually ruled that partial-birth abortion could be outlawed—but it did so by a margin of one.