At Huffington Post, Jennifer Bendery laments the Senate’s confirmation of Leonard Steven Grasz to a federal appeals court. Among Grasz’s alleged sins is that ”in a 1999 article [he] argued that lower courts should be able to overrule Supreme Court decisions on abortion rights because ‘abortion jurisprudence is, to a significant extent, a word game.’” That characterization of Grasz’s article is a garbled version of a claim made by the American Bar Association in its attack on the nominee.

Here are the most relevant passages from the actual article, written before the Supreme Court had pronounced on the constitutionality of partial-birth abortion:

Lower federal courts are obliged to follow clear legal precedent regardless of whether it may seem unwise or even morally repugnant to do so. However, a court need not extend questionable jurisprudence into new areas or apply it in areas outside of where there is clear precedent. . . .
Abortion jurisprudence is, to a significant extent, a word game. In a legal context where a child is a non-person one minute and a person the next, terminology and definitions are of critical importance. In this light, it is clear that the killing of partially-born children is inherently different from a true abortion. Abortion is typically defined as the termination of a pregnancy, which occurs “within the uterus.” However, pregnancy differs from parturition or childbirth. ”Childbirth is defined as ‘parturition,’ ‘[t]he act of giving birth.’” Thus, recognition of a heightened legal status for a partially-born child is not inconsistent with either Roe or Casey because the right to choose abortion, recognized in Roe and Casey, applies only with respect to “the unborn” (footnotes omitted).

Grasz’s actual argument, in other words, was that Roe and Casey do not apply the abortion right to a partially-born human being and that lower courts have no obligation to apply it against them. There was no suggestion that lower courts should overrule higher ones, and an explicit denial of it. Bendery is misinforming her readers.