A CNN.com article confuses the facts in attacking judicial nominee Steven Menashi’s past writings on abortion.
CNN.com has an article suggesting that nearly two decades ago, when he was a college student, a Trump-administration nominee to the Second Circuit Court of Appeals wrote some controversial newspaper columns. To quote Em Steck’s headline, Steven Menashi “once linked abortion to infanticide and decried college distribution of morning after pills.” Carrie Severino has already criticized Steck’s article for NRO.
A few additional points are worth noting.
1) Steck’s criticism of Menashi’s discussion of abortion turns on the ambiguity of the word “often.”
Menashi’s January 15, 2001, column concerned, among other things, the Born-Alive Infant Protection Act then under consideration in Congress. The law was designed to clarify that infants who survive abortion attempts are human beings “entitled to medical care and the protection of the law,” as Menashi put it. He went on to write,
One form of abortion currently practiced is called “induced labor abortion,” or “live birth abortion,” in which medication is used to cause a pregnant woman’s cervix to open so she delivers a premature baby. The baby sometimes dies in birth, but is often delivered alive. Denied medical care, the baby typically lives one or two hours before expiring.
Steck writes that Menashi wrote, “without citing specific sources[,] that the procedure often involved infanticide.” But the procedures he had in mind were, she argues, actually “extremely rare.” In context, though, it seems clear that Menashi was not saying that this type of “infanticide” was a commonplace, everyday occurrence; he was saying that it was an outcome commonly associated with this method of abortion, that is, that occurs in a significant proportion of such abortions. Menashi made no comment one way or the other about how frequently this method of abortion was used.
2) To make the case that Menashi was wrong to use the word “often,” Steck cites official estimates of the number of fetal and infant deaths associated with abortions between 2003 and 2014. This makes no sense. Menashi was advocating a law in 2001 that passed in 2002. To the extent that we can conclude that few infants have died from live-birth abortions since the procedure was banned, it’s an argument for Menashi’s position rather than against it.
3) Steck confuses different methods of abortion. She writes, “‘Live birth abortion’ is not a medical term, and has been used by anti-abortion activists to refer to an extremely rare type of abortion known as dilation and extraction that has since been heavily restricted.” As her links suggest, what Steck has in mind is what was popularly known (and is defined in federal law) as “partial-birth abortion,” in which an unborn child is partially delivered, killed, and then fully extracted from his or her mother. Pro-lifers have mostly used the term “live birth abortion” to describe the full delivery of an infant followed by (and intended to cause) his or her death.
That these are distinct things should have been clear, since Steck’s own link goes to the text of the Partial-Birth Abortion Ban of 2003 rather than to the Born-Alive Act.
4) Steck mentions that the bill Menashi was advocating, the Born-Alive Act, ended up being enacted into law by President Bush. What she fails to mention is that at the time it became law, in 2002, the Senate was controlled by Democrats; and that it was passed through the Senate by unanimous consent. Not even the most liberal senator objected. This point would seem to be relevant to assessing how controversial or radical Menashi’s stance was.