Bench Memos

Seventh Circuit Nominee David Hamilton—Abortion

Some additional comments on Seventh Circuit nominee David Hamilton’s extraordinary seven-year obstruction of Indiana’s 1995 statute governing informed consent for abortion (through his series of rulings, ultimately reversed by the Seventh Circuit, in A Woman’s Choice v. Newman):

1.  When Hamilton in 1997 finally permitted the waiting-period and mandatory-disclosure provisions of the law to go into effect, he displayed his own personal hostility to those provisions as he complained that they “appear likely to be useless, patronizing, and annoying, and there is no evidence that these provisions will actually serve any constitutionally legitimate purpose.”  This statement of his was an entirely gratuitous slap at Indiana’s statute, as these were provisions that he recognized were constitutionally permissible and was finally letting take effect

2.  In his preliminary injunction ruling, Hamilton relied almost exclusively on a statistical study of the effects of a waiting-period provision in Mississippi conducted by a sociologist at the Alan Guttmacher Institute (which engages in abortion advocacy and research).  Even after the Seventh Circuit, in a case involving a Wisconsin waiting-period provision (Karlin v. Foust, 188 F.3d 446 (1999)), concluded that the Mississippi study did not warrant invalidation of the Wisconsin provision, Judge Hamilton continued to rely on the Mississippi study in granting a permanent injunction.

In reversing Judge Hamilton’s ruling, the Seventh Circuit majority, in an opinion by Judge Easterbrook (305 F.3d 684 (2002)), noted that the Mississippi study

did not ask how Mississippi compares with Indiana. The study does not include a regression based on the sorts of variables, such as urbanization, income, average distance to an abortion clinic, average price of abortion, and so on, that might enable conclusions drawn from Mississippi to be extrapolated with confidence to other states. 

As the Seventh Circuit majority also explained, nothing in the Mississippi study spoke to the critical question that Hamilton entirely overlooked—whether any decline in abortions resulting from a provision generally requiring two visits to an abortion clinic occurred among those women who were “on the fence between ending the pregnancy and carrying the pregnancy to term, so that even a modest cost tips the scales.”  (Supreme Court candidate Diane Wood dissented.)

Hamilton’s dogged and excessive reliance on the Alan Guttmacher study suggests that Hamilton was indulging his own views on abortion policy.

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