A Failed Defense of Judge Maryanne Trump Barry

by Ramesh Ponnuru

Back in August, Donald Trump suggested that his sister might make a fine Supreme Court justice but said he would have to rule it out “for now, at least.” At the time I wrote that I hoped he would rule it out permanently, citing an opinion Judge Maryanne Trump Barry had written in defense of partial-birth abortion—an opinion that, I argued, had stopped just short of declaring infanticide a constitutional right.

I came back to the subject a week and a half ago, when Trump said that Judge Barry’s then-colleague Samuel Alito had also “signed that bill.” I pointed out that Alito had refused to join Barry’s objectionable statements.

Fred Barbash has an article in the Washington Post today defending Judge Barry’s partial-birth abortion opinion. He gives the last word to a blogger named Matthew Stiegler, who calls criticisms of her a “smear.” But neither Barbash nor Stiegler says much that is pertinent to the case I made against that opinion, and what they do say is not persuasive.

Partial-birth abortion, to review, is a procedure in which an abortionist partially delivers the unborn child, pierces her skull, vacuums her brain, and then removes the body from the womb. Pro-lifers pushed for a ban on this procedure, in part to mark an outer limit to the right to abortion that the Supreme Court had invented: Even if the Court had stopped legislatures from prohibiting violence against unborn children fully within the womb, perhaps it would allow them to prohibit violence on children who were partway out of it—who were, that is, partially born. Even many pro-choicers were revolted by this procedure, and almost all Republians and some Democrats joined to enact bans.

By the time Judge Barry’s opinion was released, the Supreme Court had already voted 5-4 to strike down a Nebraska law against partial-birth abortion. Judge Alito thought that the high court’s decision dictated that his court strike down a similar New Jersey law. Judge Barry went further than that. She made her own arguments against the law, arguments that Alito correctly noted were superfluous given the Nebraska decision. She went out of her way, in other words, to argue that partial-birth abortion deserved constitutional protection. Judge Alito presumably disagreed: Once on the Supreme Court, he voted to allow bans on partial-birth abortion. (His side won, 5-4.)

Judge Barry called the New Jersey law a “desperate attempt” to overturn Roe v. Wade. She wrote that it was “based on semantic machinations, irrational line-drawing, and an obvious attempt to inflame public opinion instead of logic or medical evidence.” She dismissed the distinction between an unborn and a partially-born child:

A woman seeking an abortion is plainly not seeking to give birth. . . . Establishing the cervix as the demarcation line between abortion and infanticide is nonsensical on its face. . . . While there are unquestionably numerous ethical, philosophical, and moral issues surrounding abortion, we are unpersuaded that these issues — or our legal analysis — should turn on where in the woman’s body the fetus expires during an abortion.

That argument went beyond anything the Supreme Court had said. As pro-lifers pointed out, it also tiptoed up to declaring a constitutional right to infanticide. The Supreme Court had effectively made the legal status of the unborn child depend on its location within the womb rather than its stage of development. If location were now to be dismissed as irrelevant, then why should killing a child partway out of the womb be a constitutional right while killing one all the way out of the womb should be a crime? Wouldn’t that be “irrational line-drawing” too? (Judge Barry offered no line of her own.) Why shouldn’t an abortionist be allowed, as a matter of right, to fully deliver the child and then kill it? After all, a woman seeking that procedure would plainly be seeking a dead child.

So Judge Barry went out of her way to make an argument for treating partial-birth abortion as a constitutional right, an argument that Judge Alito pointedly declined to embrace and that logically advances the case for a constitutional right to infanticide. It was also an argument that helped motivate Congress to pass a law clarifying that children fully delivered in abortions were covered by the infanticide laws.

Most of the points that Barbash and Stiegler raise in Barry’s defense are, as I said, not pertinent to the case I made against her. So, for example, Stiegler notes that Judge Barry sided with a pro-life protester who brought a case after being threatened in front of an abortion clinic. That decision, praiseworthy though it may have been, does not contradict my assessment that she takes an extreme view of the right to abortion. Justice Ruth Bader Ginsburg joined a unanimous opinion protecting the free-speech rights of clinic protesters. Her opinions in partial-birth abortion cases—in 2007, she made her own version of the Barry argument I’m criticizing here—are still extreme.

Both Barbash and Stiegler point out as well that Barry was originally a Reagan appointee (although Bill Clinton elevated her). Again, that doesn’t contradict me. Judge Richard Posner was also a Reagan appointee, but he too is an extremist on abortion (even disagreeing with that unanimous Court decision on pro-lifers and free speech). Stiegler notes that the attorney general of New Jersey had declined to defend the law. That’s true. But the law had been enacted over the veto of the governor who appointed the attorney general. Stiegler omits that context.

Stiegler says that the opinion is respectful of pro-lifers. There are certainly passages of the opinion that declare respect for them. But the passages about the law’s being “irrational,” “desperate,” etc.—there are several more I haven’t quoted here, including an insinuation that the law’s drafters were dishonest—justify my description of her tone as “sneering.” Neither Stiegler nor Barbash quotes any of these passages.

I also think that my description of her opinion as “expansive” is justified by a) its going out of its way to register opinions of Barry that she did not need to register to decide the case, b) its going beyond the Supreme Court’s ruling on the matter, and c) the implications of its argument.

Stiegler says that Barry might have upheld a partial-birth abortion law that had been “clearly drafted.” He does not deal with the argument she actually made, which applied to any attempt to protect a child partially delivered. He even writes that were she a legislator, she would probably have voted “in favor of such a ban if it were competently drafted.” He offers not a shread of evidence for this view.

Judge Barry may have any number of virtues worth celebrating. But her opinion on partial-birth abortion was dreadful, and the Washington Post has relied on a defense of it that obfuscates the issues involved.

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