Bench Memos

Making an Asp of Herself

“Venomous” is the adjective that springs to mind upon reading Ruth Marcus’s column in today’s Washington Post, on last week’s partial-birth abortion ruling.  I daresay Justice Kennedy was asking for rough treatment from feminists with his reference–innocuous on any other occasion, and pure dicta in this case–to “the bond of love the mother has for her child.”  But he committed, in the abortion context, the unpardonable sin of mentioning that fetuses are children and the women who carry them are mothers.

Anyway, one need not come to the defense of every jot and tittle of Justice Kennedy’s opinion (ably dissected here at NRO by Hadley Arkes yesterday) to find fault with Marcus’s column.  As the Post’s former reporter on the Supreme Court beat, Ruth Marcus evidently believes the following things:

  • That there are no choices for abortion, whether knowingly made or ignorantly made, that can constitutionally be restrained by any legislature.
  • That there are no methods of performing abortion that can validly be enjoined so long as there are some doctors willing to employ them.
  • That two or three trial courts are capable of infallible fact-finding on the general subject of abortion policy, but when Congress passes an act by overwhelming margins after painstaking evidence-gathering, that’s “the moral whims of the majority” at work.
  • That when a liberal five-justice majority declares that a right exists to pierce the skulls of almost-born infants and evacuate their brains, it is contrary to “the rule of law” for a different five-justice majority to reconsider whether that is universally so.
  • That when the Court declines to second-guess a legislative judgment, it is the Court that is guilty of behaving as though it knows better than individuals what is good for them.

And there’s one more thing Ruth Marcus seems to believe:

  • That Justice Kennedy’s opinion raises the question whether other abortion restrictions, trenching more deeply on the “right to choose,” wouldn’t equally pass muster under the reasoning that justified the Carhart ruling, if its logic (or some of it, anyway) were followed to its end.

That’s the only one of her observations that actually makes sense.  And it’s the one that explains the poisonous remainder of Ruth Marcus’s column.  After all, everyone was supposed to have shut up about this by now, right?  To start talking about it again–and in phrases that refer to mothers, children, and love?  Oh, the horror!

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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