Bench Memos

Law & the Courts

Update on Andy Schlafly’s Smear Campaign—Part 1

Andy Schlafly continues to solicit signatures for a letter to Donald Trump that sets forth his incompetent smears of six of the candidates on Trump’s Supreme Court list—Steven Colloton, Joan Larsen, Diane SykesNeil Gorsuch, Raymond Kethledge, and Allison Eid. He also continues to hide the fact that he is trashing candidates whom his late mother Phyllis Schlafly described as “top-notch” and took credit for putting on Trump’s list.

Some additional observations:

1. In a recent solicitation, Schlafly tried to gin up interest in his letter by stating that “Rick Santorum and Laura Ingraham recently called me about our coalition letter.”

But Rick Santorum tells me: “I don’t support Andy Schlafly’s letter because I don’t agree with his advice and his letter doesn’t reflect my judgment on all of the candidates.”

Laura Ingraham responds similarly to my inquiry: “The list of potential Supreme Court nominees released by the Trump team is stellar. Those of us who believe in reaffirming the proper role of the court should be celebrating the fact that President Trump will be selecting from a list of such high caliber.”

2. Schlafly has never responded to my actual critiques of his six smears. (I’ve just learned of this generic rant-purporting-to-be-response that I’ll address in a Part 2 post.) The appendix to his current letter repeats the same false charges that I have exposed (with one minor exception: the appendix doesn’t charge that Joan Larsen “is a feminist law professor who declared recently that there is sexism in law”).

3. Schlafly has posted online an “easy-to-read table” that restates, sometimes in very different wording, those false charges (including the one on Larsen that was dropped from the letter’s appendix), and he adds in yet more false charges and distortions.

To take but one example: Schlafly contends that Steven Colloton “wrote that lawmakers must defer to the ‘professional judgment’ of abortionists.” He draws the two-word quote from Colloton’s brief concurring opinion* in Planned Parenthood v. Rounds, but his latest distortion of Colloton’s position in that case is as absurdly incompetent as his initial distortion (see point 3 of my original post on Colloton).

Colloton concurred in the en banc majority’s judgment that a South Dakota law that required doctors, in the course of obtaining informed consent to abortion, to inform the woman seeking abortion of any “[i]ncreased risk of suicide ideation and suicide” associated with abortion was constitutionally permissible. He reads the law “to require a description of the relative risks as reflected in the peer-reviewed literature” and to leave the “physician free to augment that description based on his or her professional judgment.” Colloton specifically cites the majority for that same proposition. The cited passage in the majority opinion reads: “the legislature left the precise content of that description to the physician’s discretion.” The reading that Colloton and the majority offer defeats one part of the dissent’s argument that the law is unconstitutional.

The author of the en banc majority opinion, as I noted in my original post on Colloton, is fellow Trump lister Raymond Gruender, whom Schlafly praises for “a strong pro-life record.” Schlafly has never answered my query how he can possibly condemn Colloton for reaching the same result that he praises Gruender for. Surely Schlafly doesn’t imagine that Colloton’s reference to “professional judgment” somehow has a different meaning than Gruender’s reference to “physician’s discretion.”

In short, Schlafly’s contention that Steven Colloton “wrote that lawmakers must defer to the ‘professional judgment’ of abortionists” is a rank and outrageous falsehood.

* Colloton styles his two-paragraph opinion an opinion “concurring in part and concurring in the judgment.” The reader will find that Colloton is concurring in very broad part and that there is nothing in his concurrence that is less “pro-life” than the majority opinion. Indeed, one of Colloton’s points is to fault his court for allowing Planned Parenthood to “supplement the record on appeal, after the completion of briefing, with a 476-page supplemental appendix that includes several studies that were not presented to the district court.”


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