Bench Memos

Emily Bazelon’s Feeble Defense of Diane Wood’s Abortion Rulings

In a Slate essay, Emily Bazelon attempts to defend Diane Wood’s abortion rulings—just as she tried to do a year ago. This time, Bazelon doesn’t repeat her mistake of attributing to Wood an opinion that Wood had no part in (and that was issued three years before Wood became a judge). Nor, this time, does she entirely ignore Wood’s shenanigans on remand in NOW v. Scheidler (after the Supreme Court reversed her initial ruling in the case by an 8-1 vote). But her overall defense remains as weak.

As I discuss more fully in this post, the Supreme Court clearly thought that it had put an end to NOW v. Scheidler when it reversed Wood’s initial ruling. As Chief Justice Rehnquist wrote (for all justices except Stevens):

Because all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed. Without an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated.

According to Bazelon, Wood somehow thought that there was “a loose thread that … the Supreme Court had left dangling.” Instead of taking the ministerial action of reversing the district court’s order, Wood wrote an opinion concocting a possible alternative ground for an injunction and issued an order remanding the case to the district court for further action.

As Bazelon points out, the Supreme Court granted immediate review of Wood’s second ruling and, in an opinion by Justice Breyer, unanimously (8-0) reversed it. Bazelon asserts that “there’s nothing in Breyer’s opinion to support Whelan’s claim that Wood somehow defied the court’s mandate”:

In fact, the justices agreed to hear that precise question—”whether the Court of Appeals improperly disregarded this Court’s mandate,” but then chose not to answer it, deciding the case instead on other grounds.

The indented sentence from Bazelon is correct (as my own post, linked above, makes clear). But the “In fact” transition is a non sequitur. Bazelon fails to recognize what a remarkable slam it is that the Court granted review on the question whether Wood had “improperly disregarded this Court’s mandate.” She’s also wrong that “there’s nothing in Breyer’s opinion to support [my] claim that Wood somehow defied the court’s mandate.” As my post discusses, the last sentence of Justice Breyer’s opinion seems clearly (if subtly) to signal the Court’s views on that question, as the Court goes out of its way to prevent any further mischief by Wood: “The judgment of the Court of Appeals is reversed, and the cases are remanded for entry of judgment for petitioners.”

Bazelon also attempts to defend Wood’s votes, in dissent, to strike down state laws banning partial-birth abortion and to strike down an informed-consent law that was in all material respects identical to the law upheld by the Supreme Court in Planned Parenthood v. Casey.* Set aside Bazelon’s mangled assertion that the Supreme Court in its 2007 ruling in Gonzales v. Carhart “found—for the first time—that an abortion procedure was unconstitutional.” (What she presumably meant to say was something along the line that the Supreme Court “found—for the first time—that a prohibition of an abortion procedure was constitutionally permissible.”) I’m certainly not going to defend the coherence or clarity of the “undue burden” standard that the Court concocted in Planned Parenthood v. Casey. But it’s precisely because Wood consistently deployed that standard, in dissent, to pro-abortion ends (and because of her NOW v. Scheidler hijinx) that I’m entirely justified in stating that I’m aware of no judge in the country who is more extreme than Wood on abortion. Nothing Bazelon says bears on that judgment, much less refutes it.

* This post of mine (in point 2) discusses the informed-consent ruling from which Wood dissented.