Bench Memos

Law & the Courts

Correcting the Record (Again): Menashi on Abortion and Contraception

Steven Menashi (George Mason University / Antonin Scalia Law School)

This feels like déjà vu all over again.

Yet again, CNN’s K-File has misrepresented Second Circuit nominee Steven Menashi’s college writings — this time about abortion and contraception. And yet again, the record needs to be corrected.

In its piece, CNN focuses on two articles that Menashi wrote as a Dartmouth student in the same issue of the Dartmouth Review published on January 15, 2001. The first, “The Yuck Factor,” was written in Menashi’s capacity as Editor-in-Chief of the Review and cites public polling data about abortion — including late-term abortion — and how the polling data contradicts the views of some leading bioethicists on the issue.  The second column, “The College on the Pill,” written under Menashi’s own byline, raised questions about both Dartmouth’s distribution of the Plan B drug and the completeness of the information Dartmouth provided to students about it.

“The Yuck Factor”

In writing about the “Born-Alive Infants Protection Act,” which had been passed by the House of Representatives the previous fall, Menashi’s editorial observed, “Most people who believe in abortion would tend to draw the line at actual birth.”  The editorial continues, “Abortion, of course, is the right to end a pregnancy. Once birth occurs, pregnancy is over: killing the baby after birth is infanticide, not abortion.”  Having described public polling on late-term abortion earlier in the editorial, Menashi concluded that there is “overwhelming public consensus against infanticide.”

In its article published today, CNN wrote: “In the columns, Menashi focused on extremely rare procedures and even rarer outcomes associated with abortions later in pregnancy.” In support of its claim, CNN cites CDC data seeking to show that late-term abortions are rare:

“While induced labor is a form of late-term abortion, abortions after 21 weeks – including those before the 24-week standard of viability – account for 1.3% of all abortions in recent CDC data.  A CDC study from 2016 shows that between 2003 and 2014, there were 143 recorded fetal and infant deaths associated with induced terminations – but the study does not indicate how many of the fetuses were viable.”

A few points about this misrepresentation of Menashi by CNN: First, Menashi specifically noted that “live birth abortion” was just “one form of abortion currently practiced” (emphasis added). By no means did Menashi suggest that it was the only or even the most common form of abortion. Second, CNN’s citation of 143 recorded fetal and infant deaths in the cited CDC report lowballs the relevant number. That report actually stated that 588 infant deaths were reported with a code indicating a cause of death to be “termination of pregnancy, affecting fetus and newborn,” which encompassed both spontaneous and induced abortions. While 143 of that number “could definitively be classified as involving an induced termination,” the report continued, “it is possible that this number (143) underestimates the total number of deaths involving induced termination” (emphasis added). Third, Menashi was writing about live birth abortion specifically because the recently-passed “Born-Alive Infants Protection Act” was in the news. That’s exactly what editorials do: comment on items that are currently in the headlines. And finally, taking CNN’s assertion at its face that it is extremely rare for a fetus to survive a dilation and extraction procedure, that does not mean that surviving infants are not worth protecting.

While CNN notes Menashi’s reference to South Africa’s issuance of “guidelines in 1997 advising against resuscitation for some infants,” it does not explain how this relates to the title of Menashi’s editorial, “The Yuck Factor.”  In his column, Menashi quoted the South African guidelines, which state: “if an infant is born who gasps for breath, it is advised that the fetus does not receive any resuscitation measures.” Menashi wrote that this is what many bioethicists refer to as “the yuck factor” — a delivered baby gasping for breath but being allowed to die.  The editorial surveyed the views of bioethicists who maintained that “infanticide was not only morally permissible, but often imperative” (emphasis added).  But CNN conveniently omitted this tidbit.

“The College on the Pill”

In his column, Menashi wrote about how, for a period of time, the Dartmouth administration had been training undergraduates to advise residents “who were at risk for pregnancy” to use the Plan B drug, and that even some resident advisors had kept a “supply of Plan B” in their rooms to give to students (despite the fact that Plan B required a prescription at the time). (Menashi noted that, eventually, administration officials “apparently realized the legal problem with students distributing Plan B”).

Menashi also detailed the “relatively simple” process by which students were able to (legally) obtain a Plan B prescription, by having a five-minute consultation with a Dartmouth health department official. Having sent a Dartmouth Review staff member for such a consultation, Menashi reported about the potential misinformation that the health department was conveying to students. Menashi wrote that the health department official explained that Plan B was different from an abortion (“it’s a hormone to try to stop you from ovulating . . . . It’s not an abortion pill.”).  While Menashi wrote that the health department employee correctly described the Plan B drug as “inhibiting or delaying” ovulation, he noted that there “was a third case” not mentioned by the advising health official, “in which the emergency contraceptive prevents an already fertilized egg from implanting in the uterus.”

CNN incorrectly suggests this to be Menashi’s personal view. Instead, Menashi continues on to state the viewpoint of the Family Research Council (shared by many Catholics), which was that pregnancy occurs at fertilization — not implantation. Menashi directly quoted the then-spokeswoman of the Family Research Council, who said, “There is a case where a pregnancy has not occurred and the morning-after pill would decrease the uterine lining so that there is nowhere for the fertilized egg to implant itself, so it dies.”

Rather than promoting any particular viewpoint about Plan B, Menashi was highlighting the fact that one’s moral view of when a pregnancy begins necessarily affects one’s view of whether the drug functions as an abortifacient. Menashi specifically wrote: “The dispute isn’t the result of deliberate misinformation, of course, but a conflict over definition.” (For this reason, CNN’s sub-heading in the piece “Menashi called the morning after pill an ‘abortifacient'” is misleading, because he was reporting the viewpoint of groups that took that position.) Menashi very accurately wrote, “Health Services is misleading those students who believe that life begins at conception — pushing them toward a choice they might abhor if they had complete information.”

With this newest smear, CNN attempts to paint Menashi as someone who holds extremist views about abortion and contraception.  But this couldn’t be further from the truth. Menashi was pushing back against out-of-touch bioethicists who made shocking statements about infanticide, and showing how their views were out of the mainstream. He was demonstrating sensitivity to those who had moral or religious objections to the morning-after pill and helping to ensure that those viewpoints were heard and understood. Ironically, Menashi’s columns as an aspiring young journalist achieved exactly what CNN fails to do today with this article: ensure that every side of the story is fairly told.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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