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.

Most Popular

Culture

White Cats and Black Swans

Making a film of Cats is a bold endeavor — it is a musical with no real plot, based on T. S. Eliot’s idea of child-appropriate poems, and old Tom was a strange cat indeed. Casting Idris Elba as the criminal cat Macavity seems almost inevitable — he has always made a great gangster — but I think there was ... Read More
Politics & Policy

The Other Case against Reparations

Reparations are an ethical disaster. Proceeding from a doctrine of collective guilt, they are the penalty for slavery and Jim Crow, sins of which few living Americans stand accused. An offense against common sense as well as morality, reparations would take from Bubba and give to Barack, never mind if the former ... Read More
Politics & Policy

May I See Your ID?

Identity is big these days, and probably all days: racial identity, ethnic identity, political identity, etc. Tribalism. It seems to be baked into the human cake. Only the consciously, persistently religious, or spiritual, transcend it, I suppose. (“There is neither Jew nor Greek, there is neither bond nor ... Read More
Health Care

The Puzzling Problem of Vaping

San Francisco -- A 29-story office building at 123 Mission Street illustrates the policy puzzles that fester because of these facts: For centuries, tobacco has been a widely used, legal consumer good that does serious and often lethal harm when used as it is intended to be used. And its harmfulness has been a ... Read More