Bench Memos

Getting Things Backwards

As Justice O’Connor once recognized, the Supreme Court’s pro-abortion rulings “make[] it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” Alas, O’Connor herself later adopted the same practice of ad hoc nullification when she co-authored the majority opinion in Planned Parenthood v. Casey (1992) and when she joined the Court’s opinion striking down Nebraska’s ban on partial-birth abortion (Stenberg v. Carhart (2000)). So long as Planned Parenthood v. Casey survives, the “abortion distortion” will continue to impair the ability of citizens to make abortion policy through the ordinary democratic processes.

Linda Greenhouse thus gets things backwards when she complains that judges haven’t been willing to treat abortion as “a right like any other.” But she inadvertently stumbles on the truth when she observes that “there are constitutional rights and then there is abortion” and distinguishes abortion from “those rights the Constitution actually protects.” (Emphasis added.) 

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