Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—July 12

Supreme Court Associate Justice Ruth Bader Ginsburg (Joshua Roberts/Reuters)

2009—In an interview in the New York Times Magazine, Justice Ginsburg offers this, er, interesting comment why she was “surprised” by the Court’s 1980 decision in Harris v. McRae, which ruled that the Hyde Amendment’s exclusion of nontherapeutic abortions from Medicaid reimbursement was constitutionally permissible:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Gee, Justice Ginsburg, would you like to tell us more about your views on those “populations that we don’t want to have too many of”?

2016—Reversing the district court, a divided panel of the Tenth Circuit rules (in Planned Parenthood Association of Utah v. Herbert) that the Planned Parenthood Association of Utah is entitled to a preliminary injunction preventing Utah state agencies from implementing the governor’s directive that they stop channeling federal funds to PPAU. The “Factual background” in Judge Mary Beck Briscoe’s majority opinion reads in places like a Planned Parenthood press release. It even obscurely cites a Huffington Post article as authority for her dubious contentions. Worse, in determining that the governor acted in retaliation for PPAU’s exercise of its constitutional rights, Briscoe overrides the district court’s factual findings and draws highly speculative inferences that ignore the obvious reality that the governor was acting in response to concerns that PPAU was complicit in harvesting the body parts of aborted babies.

Three months later, Judge Neil Gorsuch, joined by three colleagues, will dissent from the Tenth Circuit’s denial of en banc review of Briscoe’s ruling.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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