Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—October 30

(Lucas Jackson/Reuters)

2006—A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.” The law defines “human being” as an “individual living member of the species Homo sapiens.”

In Planned Parenthood Minnesota v. Rounds, a divided panel of the Eighth Circuit affirms an injunction preventing the entire 2005 law from going into effect. In her majority opinion, Judge Diana Murphy treats as a factual finding the district court’s determination that the statement that an abortion “will terminate the life of a whole, separate, unique living human being” is a value judgment, rather than a medical fact, and she relies on a declaration submitted by one of the plaintiffs to provide evidentiary support for that supposed factual finding. The statement, she concludes, “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.” In dissent, Judge Raymond Gruender points out that the statement is “an unremarkable tautology”—“a restatement of the definition of ‘abortion’”—and is “truthful, non-misleading, and non-ideological on its face.”

In June 2008, the Eighth Circuit, acting en banc, reverses the panel decision by a 7-4 vote, with Judge Gruender penning the majority opinion and Judge Murphy the dissent.

2019—At a Georgetown law school event with Justice Ruth Bader Ginsburg, Bill Clinton discloses that he discussed Roe v. Wade with Ginsburg before nominating her to the Supreme Court in 1993, that their discussion was important to “why I thought I should appoint her,” and that Ginsburg “knew this perfectly well.”

Clinton’s disclosure is in serious tension with Ginsburg’s sworn testimony to the Senate in 1993 that no one involved in the selection process “discussed with me any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning my position on such case, issue, or question.” (More here.)

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