Bench Memos

Law & the Courts

Posner’s Puerile Potshot at Scott Walker

Yesterday a Seventh Circuit panel heard oral argument in a case challenging a Wisconsin law that requires hospital admitting privileges for doctors performing abortions. According to this Milwaukee Journal Sentinel article, Seventh Circuit judge Richard Posner somehow saw fit to pose this question to the state’s attorney:

Governor Walker, before he withdrew from the presidential race, said he thought abortion should be forbidden even if the mother dies…. Is that kind of official Wisconsin policy?

Posner’s question was an ill-founded potshot. As the article explains, Scott Walker has publicly stated that he believes that “choosing between the life of a mother and a fetus was a ‘false choice’ and that better options were always available.” (The main quote is the reporter’s paraphrase of Walker’s position; the “false choice” phrase is Walker’s.) In other words, Walker believes that abortion is never medically necessary to save the life of the mother.

To be sure, the question whether abortion is ever medically necessary to save the life of the mother is, like so many questions in the broader abortion debate, disputed. Much (but perhaps not all) of the dispute turns on what counts as an abortion. Walker, I’m confident, recognizes that procedures, like early delivery, that will or might foreseeably result in the imminent, but undesired, death of the child are not abortions.

But let’s assume that Walker is mistaken in thinking that there are never circumstances in which dismembering or directly killing the child in utero is necessary to save the life of the mother. All that would mean is that he is wrong to think that the choice to abort to save the life of the mother is always a “false choice.” That says nothing about what he would think government policy ought to be in those instances in which the choice is a real one. In other words, from the evidence I’ve seen, Posner is wrong to contend that Walker has said that (in Posner’s words) “he thought abortion should be forbidden even if the mother dies.”

Even beyond his distortions, Posner was also being ridiculous, of course, in imagining that statements that a governor makes as part of his presidential campaign might be “kind of official [state] policy.” No, Judge Posner, that’s not how state policy is established (not even “kind of”). If you’re really not clear on that point, it’s well past time for you to resign.

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