Bench Memos

This Day in Liberal Judicial Activism—January 29

1971—Two years before Roe v. Wade, a divided three-judge district panel rules in Doe v. Scott that the longstanding Illinois abortion statute is invalid in two respects. The majority holds, first, that the statute is unconstitutionally vague because its exception for abortions “necessary for the preservation of the woman’s life” is supposedly not sufficiently intelligible. Second, it determines that the Supreme Court’s ruling in Griswold v. Connecticut on a marital right to contraception compels the conclusion that the statute unconstitutionally invades a woman’s privacy interests. The court enjoins state officials from enforcing the statute against licensed physicians performing abortions during the first trimester in a licensed medical facility.

In an excellent dissent, senior district judge William Joseph Campbell faults the judges in the majority for “impos[ing] upon the people of Illinois their own views on this most important and controversial issue concerning public health and morals.” Judge Campbell points out that “we are presented with no actual circumstance where the vagueness question is in issue,” and he cites “numerous examples of statutes which have been held constitutional and which are not as clear and definite as this one.” He also finds “incredible” the majority’s assertion that “there is no distinction that can be made between prohibiting the use of contraceptives and prohibiting the destruction of fetal life.”

2004—Having somehow given her permission to the NOW Legal Defense and Education Fund to dedicate a lecture series in her honor, Justice Ruth Bader Ginsburg presents opening remarks at the fourth annual Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law. Never mind that the highly ideological NOW Legal Defense and Education Fund regularly files briefs in the Supreme Court (and indeed had filed a brief in a case that was pending when Ginsburg agreed to give her remarks).

Somehow many of the same folks who squawk when a conservative justice merely speaks to a conservative group that doesn’t litigate in the Supreme Court are silent at the extraordinary spectacle of a justice’s permitting a repeat litigant to name a lecture series in her honor.

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