In an op-ed for the New York Times titled “Religion Has Friends Among Judges in High Places,” Linda Greenhouse offers some confused thoughts on the litigation over the FDA’s approval of the abortion drug mifepristone. Some observations:

1. Greenhouse declares:

The basis for the belief that a fetus in the first 10 weeks of pregnancy — the time limit the F.D.A. has set for medication abortion — is the moral equivalent of a baby is theological. [Emphasis in original.]

Greenhouse’s declaration manages to be both irrelevant and wrong.

a. Greenhouse’s declaration is irrelevant because she mistakenly assumes that federal district judge Matthew Kacsmaryk used the term “unborn human” in his ruling as part of an argument or assertion that “a fetus in the first 10 weeks of pregnancy … is the moral equivalent of a baby.” But as Kacsmaryk explains (in footnote 1 on page 2 of his ruling), he is using that term because it is “inclusive of the multiple gestational states relevant to the FDA Approval.” Kacsmaryk explains that the “word ‘fetus’ refers to a specific gestational stage of development, as opposed to the zygote, blastocyst, or embryo stages.”

By referring to “a fetus in the first 10 weeks of pregnancy,” Greenhouse misuses the term fetus to include those previous stages. In other words, she makes the very error that Kacsmaryk warns against.

b. The proposition that “a fetus in the first 10 weeks of pregnancy … is the moral equivalent of a baby” is not “theological.” The simplest disproof of Greenhouse’s assertion is the fact that many atheists believe that the unborn child in the first 10 weeks of pregnancy possesses the same right against being unjustly killed that babies and other human beings do.

Here is a fuller argument by Patrick Lee and Robert P. George on “The Wrong of Abortion.” Nothing in their argument (or in lots of similar pro-life arguments) invokes or rests on theology.

The position that Greenhouse contends to be theological is no more theological than the claim that the 10-year-old Linda Greenhouse has the same moral standing as the 76-year-old Linda Greenhouse. In neither case can science settle the question. Science affirms that the identity of human beings is the same in both cases, and so leaves to moral reasoning whether to act in recognition of that identity or to deny it for reasons beyond the realm of science.

(I’m open to the position that every moral argument is ultimately theological. But that’s not what Greenhouse is contending.)

Greenhouse has previously asserted that even the statement of biological fact that “the life of each human being begins at conception” is “an unequivocal endorsement of a religious tenet.” Perhaps she is abandoning that claim. But her current claim is no sounder.

2. On the question of standing, Greenhouse asserts that the plaintiffs in the FDA case “would have been laughed out of any court that hadn’t been taken over by appointees of former President Donald Trump.” One large problem with the assertion is that the primary precedent that the Department of Justice invokes against plaintiffs is a case—Summers v. Earth Island Institute (2009)—in which the four liberal justices in dissent would have found that the plaintiffs had standing.

It’s one thing to argue that the plaintiffs in the FDA case can’t satisfy Summers (an argument that the plaintiffs of course dispute). It’s quite another to suggest that the standing argument is beyond the bounds of what liberal justices, on causes they are more sympathetic to, have been willing to embrace.

3. Greenhouse quotes a blog post by Adam Unikowsky, “a former law clerk to Justice Antonin Scalia,” for the proposition that “being an emergency room doctor is not the job for you” if you have conscientious objections to performing an abortion to save a woman’s life.

As Dan McLaughlin has pointed out, rather than identify Unikowsky by a clerkship he had a dozen years ago, it would seem more relevant to disclose that he is a partner in the law firm that represents Planned Parenthood and other abortion groups in this very litigation (as well as in other abortion cases). Such a disclosure doesn’t speak to the merits of Unikowsky’s arguments (which, as Dan points out, stand or fall apart from any biases Unikowsky might have), but it would be consistent with standard practices.

For what it’s worth, while I think that Unikowsky makes some weighty arguments in his blog post, Greenhouse manages to quote him on the single point that struck me as his weakest and on which his legal experience would seem to have zero bearing.