Bench Memos

Toobin’s Botched Abortion Reporting

The New Yorker’s Jeffrey Toobin manages to botch quite a lot in a short piece tendentiously titled “The Disappearing ‘Undue Burden’ Standard for Abortion Rights.” For example:

1. Celebrating the “undue burden” standard for abortion regulations as Justice O’Connor’s “most important triumph,” Toobin contends “her position commanded a majority” in the Court’s 1992 decision in Planned Parenthood v. Casey. But only O’Connor and the two co-authors of her joint opinion in Casey adopted the undue-burden standard. Justices Blackmun and Stevens, who joined much of the joint opinion, did not join the part setting forth the undue-burden standard. Indeed, Blackmun wrote separately to insist: “Today, no less than yesterday, the Constitution and decisions of this Court require that a State’s abortion restrictions be subjected to the strictest of judicial scrutiny.”

2. Even more absurdly, Toobin contends that in 2006 “the remaining eight Justices joined [O’Connor] in embracing the ‘undue burden’ standard.” Gee, who knew that Justice O’Connor had managed to convert Justice Scalia to her view of things?

As O’Connor states in the first sentence of her 2006 opinion (in Ayotte v. New Hampshire), “We do not revisit our abortion precedents today, but rather address a question of remedy.” O’Connor’s opinion doesn’t even mention the undue-burden standard, except in one quote from the court below. In other words, no one embraced the undue-burden standard in that case because the appropriate standard wasn’t at issue.

3. Toobin claims that the federal ban on partial-birth abortions, which the Court upheld in its 2007 ruling in Gonzales v. Carhart, “disallowed what was then the most common form of second-trimester abortion.” But the Carhart majority distinguishes partial-birth abortion, or “intact D&E,” from the standard D&E (“the usual second-trimester procedure”), and it explains that the federal ban does not cover the standard D&E.  Does Toobin really not understand this elementary point?

4. Referring to a newspaper account of a Fifth Circuit oral argument the other day, Toobin contends that the “members of the Fifth Circuit panel seem to believe that anything short of a nationwide ban on abortion does not amount to an undue burden on women’s rights.” But there is nothing in the newspaper account to support his wild hyperbole. (The Fifth Circuit’s decision in March—by an all-female panel, as it happens—carefully applied the undue-burden standard in rejecting a challenge to other provisions of Texas law.)

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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