Maryanne Trump Barry vs. Samuel Alito on Abortion

by Ramesh Ponnuru

From last night’s debate:

TRUMP: Now, Ted’s been very critical — I have a sister who’s a brilliant . . . 

HEWITT: Mr. Cruz, will you make a deal about religious liberty?

TRUMP: . . . excuse me. She’s a brilliant judge. He’s been criticizing — he’s been criticizing my sister for signing a certain bill. You know who else signed that bill? Justice Samuel Alito, a very conservative member of the Supreme Court, with my sister, signed that bill.

So I think that maybe we should get a little bit of an apology from Ted. What do you think?

I think Trump doesn’t know what he’s talking about, starting with the fact that judicial opinions and bills are not the same thing.

What Cruz has mentioned in the past is Judge Maryanne Trump Barry’s opinion in a 2000 case concerning a New Jersey law banning partial-birth abortion. The Supreme Court had already struck down a similar law before that opinion was issued. Judge Barry could have simply ruled that the Supreme Court had spoken and that lower-court judges were bound by its ruling to strike down the New Jersey law too. Instead, Judge Barry wrote an expansive opinion attacking and sneering at the law, and laying out an argument that would logically justify a constitutional right to infanticide.

An important part of the rationale for a ban on partial-birth abortion was that it involved a procedure that Roe v. Wade and successor cases had not clearly declared a constitutional right before 2000. Under the Supreme Court’s abortion jurisprudence, the right to life of a developing human being depended on whether it was inside or outside the womb — and not, for example, on its stage of development. Inside the womb, the child was a fetus with no rights, and outside the child was an infant with rights. Pro-lifers wanted to mark an outer limit to this abortion regime by making it illegal to kill a human being who was partway out of the womb.

Judge Barry said that this was absurd and irrational. It makes no difference where the “fetus” is when it “expires,” as she put it, during an abortion. But if that’s right, then (as pro-lifers have pointed out before) it can’t make a difference if the child is fully outside the womb either. And she’s right, of course, that the location-based rule of Roe makes no sense. That’s where the irrationality lies. But she would resolve its contradictions by beginning to rationalize a constitutional right to commit and procure infanticide.

Justice Alito, then Barry’s colleague on the appeals court, did not join Barry’s opinion, which he called “unnecessary” and “obsolete,” instead just ruling that the Supreme Court’s decision on partial-birth abortion governed the lower courts.

Eventually Congress moved to make clear that it is illegal to kill children who are born alive during attempted abortions. That law was in part motivated by Judge Barry’s opinion.

It’s one thing to say we shouldn’t hold this judicial opinion against Trump because he’s just praising his sister. (Even then, one might wish he would suggest that he had a different view.) But Justice Alito didn’t join that opinion and was right not to join it, and Trump is mistaken in suggesting otherwise.

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