Law & the Courts

MALDEF Blasts Biden for ‘Shabby Treatment’ of Latino Judicial Candidates

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Yesterday the Mexican American Legal Defense and Educational Fund issued a remarkable statement slamming President Biden for his “ongoing shabby treatment of the Latino community” in judicial nominations. MALDEF’s condemnation of Biden provides a stark illustration of the incoherence of the Left’s demand for diversity.

What triggered MALDEF’s attack on Biden was the White House’s announcement of three new federal appellate nominees: Florence Pan to the D.C. Circuit (filling the seat that Judge Ketanji Brown Jackson will vacate); Rachel Bloomekatz to the Sixth Circuit; and Doris Pryor to the Seventh Circuit. These picks continue President Biden’s remarkable success of meeting his (highly dubious) standard of demographic diversity: All three are women, meaning that 20 of Biden’s 27 appellate picks are female. Pan is Biden’s fifth appellate pick of Asian ancestry, and Pryor is his tenth black appellate nominee (and ninth black woman).

MALDEF is upset that Latinos aren’t faring nearly as well as blacks and Asian Americans in the competition for judicial nominations. In its statement, MALDEF complained that “the Biden Administration chose yet again to send a harsh message of exclusion to the Latino community.” MALDEF continued with this amazing passage:

The timing of today’s announcement is also disturbing.  Yesterday, 19 children were murdered at a Texas elementary school with an overwhelmingly Latino student body.  Yet, President Biden chose today to teach Latino schoolchildren nationwide that they should stem their future ambitions because he at least does not believe that they warrant inclusion on the nation’s most important federal courts.  Inexplicable timing, but President Biden apparently simply does not care.

Indeed, five times in its statement MALDEF charged that Biden “apparently simply does not care” about remedying what it contends is the “historic underrepresentation” of Latinos in the federal judiciary. And MALDEF closes with this stark warning to Biden:

[I]f you explicitly and consistently demonstrate that you do not care about Latinos, you should not expect them to care about you when it comes time to vote.

Bureaucratic bean counting amply supports MALDEF’s complaint about mistreatment relative to other minorities. Latinos account for slightly more lawyers than African Americans do (see point 3 here), and they make up a much larger share of the American population. But whereas Biden has nominated ten African Americans, he has, by my count, nominated only four Latinos. (First Circuit nominee Lara Montecalvo’s maiden surname was Ewens, and, from what I can tell, does not identify as a Latina.) And one of those four, Gustavo Gelpí, was to the Puerto Rico seat on the First Circuit, where it would have been difficult not to nominate a Latino.

In further support of MALDEF, it’s also striking that Pan would become the third Asian American on the 11-member D.C. Circuit, which also has three African Americans (and will continue to do so after Judge Jackson takes her seat on the Supreme Court and Judge Michelle Childs fills another vacancy). By contrast, as MALDEF points out, the D.C. Circuit has never had a Latino judge.

But one big reason that the D.C. Circuit has never had a Latino judge is that MALDEF itself led the way in opposing President George W. Bush’s nomination of the superbly qualified Miguel Estrada to that court two decades ago. More broadly, I find it difficult to appreciate MALDEF’s complaint that Latinos are “the only racial minority group” that has “not received nominations in proportions that are multiples of population parity.”

MALDEF acknowledges that “Latinos have received about 20 percent of the Biden nominations[, …] equivalent to the Latino proportion of the nation’s total population.” If you’re going to play the diversity game, I don’t understand why proportion of the nation’s lawyers isn’t a much more sensible benchmark. By that standard, Biden has over-nominated Latinos by a factor of four. If MALDEF is instead going to insist on “nominations in proportions that are multiples of population parity,” does that mean that it thinks that Latinos should receive 40% or 60% of all judicial nominations?

I would also be curious what MALDEF’s claim of “historic underrepresentation” of Latinos in the federal judiciary means. Latinos did not account for even one percent of the United States population until around a century ago and were under ten percent as recently as 1990. Being Latino has been a big plus in the judicial-selection process for decades. That’s been true for presidents of both parties: Republican presidents have appointed 62 Latino judges (recall that George H.W. Bush appointed Sonia Sotomayor to the federal bench when she was only 38), versus 79 for Democratic presidents. Latino judges make up more than nine percent of active federal judges—nearly double the percentage of lawyers who are Latino.

Law & the Courts

Re: Kagan and Breyer Hail Common-Law Jurist Matthew Hale

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In a post two days ago, I discussed the inane attack on Justice Alito for including the 17th-century English jurist Matthew Hale among the authorities he cites for the common-law treatment of abortion. In the course of noting that Justice Kagan and Justice Breyer had also cited Hale as an authority on the common law, I observed that Kagan “respectfully refers to ‘Lord Matthew Hale,’” whereas “Alito uses the lesser honorific ‘Sir.’”

An erudite reader informs me that Kagan’s more respectful title for Hale is also wrong:

Matthew Hale never was “Lord Matthew Hale” and to call him that is as wrong as calling a President a “Prime Minister” or a knight a “king.” Justice Kagan ought not to have referred to him as such.  “Lord Firstname Lastname” is a title of honor, and only a (younger) son of a duke or of a marquess is “Lord Firstname Lastname.”

He personally did not wish to have a title of honor and attempted to resist the knighthood (a title of honor) that traditionally accompanied being named Chief Baron of the Exchequer (that is, the head of the Court of Exchequer—a title of office) in 1660.  Famously, Lord Clarendon and King Charles II had to resort to a ruse in order to get Hale into the physical presence of the King, who knighted him on the spot. From that moment, he became “Sir Matthew Hale.” When he became Lord Chief Justice of England in 1671 (a title of office), he remained “Sir Matthew Hale,” although—only while actually encumbering that position—he might (informally) have been referred to as “Lord Justice Hale” or (even more informally) as “Lord Hale.” But those were titles of office, not titles of honor and thus the “Lord” bit would have vanished when he left office. In no event would his Christian name have followed the word “Lord.” Thus, Winston Churchill twice was First Lord of the Admiralty, but no one would ever have referred to him as “Lord Winston Churchill” on that account, as he was a grandson of a duke, not a (younger) son of a duke.

Law & the Courts

This Day in Liberal Judicial Activism—May 26

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1994—Exasperated by President Clinton’s nomination of Stephen Breyer to fill Justice Harry Blackmun’s seat on the Supreme Court, Ninth Circuit judge Stephen Reinhardt publishes a “personal appeal” to Breyer in the Los Angeles Times. Reinhardt urges Breyer to “re-examine your judicial philosophy” and instead to “carry on the work of the court’s great progressive thinkers.” You can remain the “cold, purely intellectual and wholly technical” jurist that you have been, Reinhardt tells Breyer, “or you can become what the President said he was looking for—a justice who is compassionate, who has a big heart.” 

2009—Implementing his threat to select a justice who will make decisions based on empathy, President Obama nominates Second Circuit judge Sonia Sotomayor to fill the seat of retiring justice David Souter. During the confirmation process, the “wise Latina” (at least in her own self-conception) will demoralize and disgust her supporters on the Left, as she implausibly masquerades as a caricature of a judicial conservative and even emphatically repudiates Obama’s empathy standard. 

2021—In an adventuresome frolic (in Arevalo-Quintero v. Garland), a Fourth Circuit panel takes a simple statutory provision—namely, an immigration judge “shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses”—and extrapolates from it an elaborate duty on the part of an immigration judge to “fully develop the record” in all sorts of ways. Among other things, the panel rules that an immigration judge must “probe into, inquire of, and elicit all facts relevant to a respondent’s claims” and “must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.”  

Law & the Courts

Re: Michigan Abortion Shenanigans

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Last week I reported on the extraordinary shenanigans by which Michigan judge Elizabeth Gleicher enjoined state officials from enforcing a state abortion law if and when Roe is overturned. In response to that ruling, two county prosecutors, along with Right to Life of Michigan and the Michigan Catholic Conference, filed a complaint asking the court of appeals to take superintending control of the case as well as a motion seeking immediate consideration of their complaint.

I’m pleased to pass along that the state court of appeals today granted the complainants’ motion for immediate consideration and ordered Judge Gleicher to file her answer to the complaint by June 13. Here is an excerpt from their motion (italics in original; underlining added; citations simplified):

  1. … [T]he Court of Claims [i.e., Judge Gleicher] in its May 17, 2022 Opinion and Order in Planned Parenthood of Mich v Attorney General exceeded its jurisdiction, acted in a manner inconsistent with its jurisdiction, and failed to proceed according to law in declining to dismiss Planned Parenthood’s action and entering injunctive relief, as well as in not recusing itself. Given that the only party to the action who can appeal has vowed not to do so, the lower court’s actions also leave Plaintiffs without an adequate legal remedy.
  2. The lower court’s ruling has enjoined enforcement of a decades-old, valid Michigan statute – by county prosecutors who are not even parties to the action – in a suit between non-adverse parties who agree on that improper remedy, issued by a judge with longstanding and/or continuing financial and other ties to one of them, and contrary to binding, published authority of this Court that the judge litigated and lost as a practicing attorney….
  3. Protection of this Court’s precedential decisions also counsels strongly in favor of immediate consideration…. In Mahaffey v Attorney General (1997), this Court stated unambiguously that “the Michigan Constitution does not guarantee a right to abortion that is separate and distinct from the federal right.” In holding the opposite in this case, the Court of Claims distinguished Mahaffey as involving the right to privacy, due process, free speech and vagueness, and not the “right to bodily integrity” that according to the Court of Claims was not even recognized under the Michigan Constitution until Mays v Snyder (2018). The Court of Claims went on to define the parameters of that due-process right primarily as “the right to be let alone” articulated by Justice Cooley in Cooley, Torts, 29. Id, pp 17-18. Drawing from a hodgepodge of foreign and federal cases from the last century – some of them overruled, or dissenting statements – the Court of Claims defined its newly found right as someone’s “right to determine what shall be done with his own body,” or “[t]he right of a person to control his own body,” or “that each man is considered to be master of his own body….”
  4. But far from constituting a field left unplowed by this Court in Mahaffey, the Court of Claims’ amorphous right was squarely put in issue by the 1994 complaint in that case – which the Court of Claims judge filed as co-counsel for plaintiffs. Though it was not labeled a “right to bodily integrity,” the term that gained recognition with Mays in 2018, the gravamen of that claim was the same….

(For you procedural mavens, a complaint for an order of superintending control under Michigan law is, as I understand it, akin to an action for mandamus.)

Law & the Courts

This Day in Liberal Judicial Activism—May 25

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2017—By a vote of 10 to 3, the en banc Fourth Circuit affirms a district court’s nationwide injunction on President Trump’s executive order that temporarily bars immigration from six majority-Muslim countries. That order spells out that each of the six countries “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” But Chief Judge Roger Gregory, author of the majority opinion, looks to campaign statements by candidate Trump to dismiss the order’s stated reasons as “a pretext for what really is an anti-Muslim religious purpose.”

In dissent, Judge Paul Niemeyer (joined by Judges Shedd and Agee) faults the majority for violating the Supreme Court’s precedent in Kleindienst v. Agee (1972), “which held that courts are precluded from ‘look[ing] behind’ ‘facially legitimate and bona fide’ exercises of executive discretion in the immigration context to discern other possible purposes.”

(In October 2017, the Supreme Court will vacate the Fourth Circuit’s judgment on the ground that the expiration of the relevant provision of the executive order meant that there was no longer a “live case or controversy.”)

Law & the Courts

Kagan and Breyer Hail Common-Law Jurist Matthew Hale

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The competition is intense, to be sure, but high on the list of the most stupid attacks on Justice Alito’s leaked draft majority opinion in Dobbs is the objection that Alito includes the 17th-century English jurist Matthew Hale among the authorities he cites in discussing the common-law treatment of abortion. Hale, as one typical critic complains, “was considered misogynistic even by his era’s notably low standards.”

One simple answer to this criticism is that Hale’s account of the common-law treatment of abortion stands or falls independent of his own virtues or vices. The Alito draft cites Blackstone, Coke, and Bracton, along with Hale, to establish that abortion after quickening was criminal at common law, and it cites Blackstone, along with Hale, to establish that the common law “did not condone even pre-quickening abortions.” One could try to argue that these authorities were wrong about the common-law treatment of abortion, or one could try to argue that Alito’s draft makes improper use of the common-law treatment of abortion, but it’s a gross ad hominem to fault Alito for citing Hale.

For what it’s worth, just two years ago in Kahler v. Kansas, both Justice Kagan in her majority opinion and Justice Breyer in his dissent cited Hale with approval. The legal question in that case was whether the Due Process Clause of the Fourteenth Amendment requires the states to adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally wrong.

As Kagan explains, a state rule about criminal liability “violates due process only if it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (Cleaned up.) The Court’s “primary guide in applying that standard is ‘historical practice,’” and “in assessing that practice, we look primarily to eminent common-law authorities (Blackstone, Coke, Hale, and the like), as well as to early English and American judicial decisions.” That is the very passage that the Alito draft quotes as it undertakes the similar project of determining whether a right to abortion is “deeply rooted in this Nation’s history and tradition” (under the “established method of substantive-due-process analysis” that the Court summarized in Washington v. Glucksberg (1997)).

Elsewhere in her opinion, Kagan respectfully refers to “Lord Matthew Hale.” Alito uses the lesser honorific “Sir.”

In his dissent in Kahler, Breyer similarly invokes the “four preeminent common-law jurists, Bracton, Coke, Hale, and Blackstone, [who] each linked criminality to the presence of reason, free will, and moral understanding.”

Law & the Courts

This Day in Liberal Judicial Activism—May 24

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 2016—Federal district judge Michael H. Watson rules (in Ohio Organizing Collaborative v. Husted) that an Ohio law that altered the period for early in-person voting from 35 days before Election Day to 29 days before Election Day violates the Equal Protection Clause and the Voting Rights Act.

Three months later, a divided panel of the Sixth Circuit (with Obama appointee Jane Branstetter Stranch in dissent) will reverse Watson’s ruling. In his majority opinion, Judge David McKeague explains that the Ohio law “applies even-handedly to all voters” and “continues to provide generous, reasonable, and accessible voting options to Ohioans.” Indeed, Ohio “is a national leader when it comes to early voting opportunities,” and “a third of the states offer no early voting.” McKeague labels “astonishing” the proposition that Ohio’s previous law “established a federal floor that Ohio may add to but never subtract from.” Such a proposition “would discourage states from ever increasing early voting opportunities, lest they be prohibited from later modifying their election procedures in response to changing circumstances.”

2020—In Jones v. DeSantis, federal district judge Robert L. Hinkle enjoins Florida officials from enforcing provisions of state law that condition restoration of a felon’s voting rights on completion of the financial terms of his criminal sentence. Specifically, Hinkle’s injunction would allow any felon who is unable to pay his fines or restitution or who has failed for any reason to pay his court fees and costs to register and vote.

Several months later, the en banc Eleventh Circuit, by a vote of 6 to 4, will vacate Hinkle’s injunction.

Law & the Courts

This Day in Liberal Judicial Activism—May 23

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1957—Three Cleveland police officers arrive at Dolly Mapp’s home seeking a suspect wanted in connection with a recent bombing. After Mapp refuses to admit them, the police forcibly enter and search the home and discover obscene materials. Mapp is convicted of possession of these materials. The Ohio supreme court rules that the search of the home was unlawful but that Mapp’s conviction resting on evidence resulting from the search is valid.

In Mapp v. Ohio (1961), the Supreme Court, by a vote of 5 to 3, overrules its own 1949 precedent that held that the Constitution does not require that evidence obtained in violation of the Constitution be excluded from criminal trials in state court. The Court instead applies to state criminal trials the exclusionary rule that it first imposed on federal criminal trials in 1914. In dissent, Justice Harlan (joined by Justices Frankfurter and Whittaker) concludes his analysis with this observation: “I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.”

2011—In Brown v. Plata, the Supreme Court, by a 5-4 vote, affirms what Justice Scalia, in dissent, calls “perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.” Scalia condemns the lower-court proceedings as a “judicial travesty.” The injunction “violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” In his own dissent, Justice Alito similarly lambastes the injunction as “unprecedented, improvident, and contrary to the [Prison Litigation Reform Act of 1995],” and he faults the Court majority for “gambling with the safety of the people of California.”

In the aftermath of the Court’s decision, the district court will repeatedly be forced to extend its deadline for compliance with its injunction, all the way until February 2016.

2016—In Planned Parenthood of Greater Ohio v. Hodges, federal district judge Michael R. Barrett (a Bush 43 appointee) grants Planned Parenthood affiliates in Ohio a temporary restraining order against an Ohio law that directs the state department of health to “ensure” that funds it receives through six programs not be used to perform or promote nontherapeutic abortions or to contract with any entity that performs or promotes such abortions. Overlooking that the state law provides two separate and independent bases for the state department of health not to fund the Planned Parenthood affiliates, Barrett fails to respect longstanding Supreme Court precedents holding that there is no constitutional right to government funding of the performance of abortions.

In 2019, the en banc Sixth Circuit will rule that the Ohio law is constitutionally permissible.

Law & the Courts

This Day in Liberal Judicial Activism—May 22

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1991—Federal district judge H. Lee Sarokin delivers a This Day classic. The backdrop: Richard R. Kreimer, a homeless man, camped out in the Morristown, New Jersey, public library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. The library then adopted written policies setting forth minimal standards of patron behavior. After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin rules that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. On appeal, the Third Circuit will unanimously reverse Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin deprived other citizens of the right to use a library in peace. Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library. (For a fuller discussion of this This Day classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton will appoint Sarokin to the Third Circuit in 1994. 

2015First Amendment speech rights receive very uneven protection from progressive judges, depending on what viewpoint is being expressed. So it is that Second Circuit judges Rosemary S. Pooler and Peter W. Hall rule (in Children First Foundation, Inc. v. Fiala) that the First Amendment allows New York’s Department of Motor Vehicles to exclude an adoption organization’s proposed “Choose Life” plate from its “custom” license plate program pursuant to—get this—the DMV’s statutory authority to reject license plates that are “patently offensive.”  

Law & the Courts

This Day in Liberal Judicial Activism—May 20

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1996—What’s one way to deal with unhelpful precedent? Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does. 

In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal. A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing a protected status on homosexual orientation, conduct, practices, and relationships. Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause. (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having seriously eroded Bowers.) 

Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.” 

2008—A Ninth Circuit panel rules (in Witt v. Department of the Air Force) that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” statute governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.” Despite relevant Supreme Court precedent, the panel somehow fails even to consider whether the military context calls for a lower standard of scrutiny.  

More evidence of the panel’s sloppiness is provided by its assertion that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.” In fact, Justice Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that supposedly cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer 

2008—A divided Fourth Circuit panel rules (in Richmond Medical Center for Women v. Herring) that a Virginia statute that outlaws partial-birth abortion “imposes an undue burden on a woman’s right to obtain an abortion” and therefore violates the federal Constitution (as misinterpreted by the Supreme Court). In the aftermath of the Court’s ruling in Gonzales v. Carhart (2007) rejecting a facial challenge to the federal ban on partial-birth abortion, the majority opinion by Judge Blane Michael, joined by fellow Clinton appointee Diana Gribbon Motz, purports to distinguish the statute’s intent element from the intent element in the federal ban. Judge Paul Niemeyer dissents. 

The Fourth Circuit will grant en banc review in the case and in October 2008, in a majority opinion by Niemeyer, will reject the facial challenge to the Virginia statute by a vote of 6 to 5.  

2014—In a stark display of the Jacobin temperament that underlies his opinion striking down Pennsylvania’s marriage laws, federal district judge John E. Jones III (a Bush 43 appointee) declares that “it is time to discard [the laws] into the ash heap of history.” 

Law & the Courts

This Day in Liberal Judicial Activism—May 19

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2014—When Oregon officials irresponsibly refuse to defend their own marriage laws, the greatest relief that ought to be awarded is a default judgment in favor of the named plaintiffs. But federal district judge Michael J. McShane instead issues a lengthy opinion, replete with extravagant prose (“Let us look less to the sky to see what might fall; rather, let us look to each other … and rise” (ellipsis in original)), in which he rules that Oregon’s laws defining marriage as the union of a man and a woman flunk rational-basis review. Further, he orders Oregon officials not to enforce those laws against anyone seeking to marry a person of the same sex. 

2020—In what the Fifth Circuit, in its reversal two weeks later, will say is “an order that will be remembered more for audacity than legal reasoning,” federal district judge Fred Biery (in Texas Democratic Party v. Abbott) orders Texas to allow all voters to apply to vote by mail in the July 2020 primary runoff elections. In the midst of the coronavirus pandemic, Biery opines, Texas law allowing voting by mail by voters age 65 and older (as well as by those unable to vote in person because they are away from home or disabled) unconstitutionally burdens the rights of voters under the age of 65. 

Law & the Courts

Michigan Abortion Shenanigans

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Michigan is one of several states that has on its statutory books a pre-Roe ban on abortion. Under ordinary principles of law, that ban would spring back into enforceability if Roe is overturned. So it wouldn’t have been a surprise if Michigan governor Gretchen Whitmer, an ardent supporter of legalized abortion, had urged the Michigan legislature to repeal or revise the pre-Roe ban.

But the actual path by which that ban has now been enjoined is far more sinuous and disturbing. In brief:

1. In April, Planned Parenthood of Michigan (PPM) filed a lawsuit against Michigan attorney general Dana Nessel seeking to enjoin her from enforcing the abortion law. Nessel, like Whitmer, is a vocal supporter of legalized abortion and had already vowed not to enforce the law. As PPM surely anticipated, Nessel immediately announced that she agreed with PPM that the law violates the Michigan constitution and that she would not defend it (and would not allow anyone in her office to do so).

2. PPM’s lawsuit was randomly assigned to chief judge Elizabeth L. Gleicher of the state court of claims. Gleicher notified the parties (via a letter from the court clerk) that “she makes yearly contributions to Planned Parenthood of Michigan” and “represented Planned Parenthood as a volunteer attorney for the ACLU in 1996-1997, in Mahaffey v. Attorney General.” She concluded, however, that she “does not believe this warrants her recusal, and is certain that she can sit on the case with requisite impartiality and objectivity.” Ah, yes, of course.

3. It turns out that Gleicher’s connections with PPM and the cause of abortion are even much stronger than she disclosed. As amici Right to Life of Michigan and the Michigan Catholic Conference documented, her own bio states that she “received the Planned Parenthood Advocate Award” in 1998. In addition to representing PPM in unsuccessfully challenging an informed-consent law in Mahaffey, Gleicher also “represented Planned Parenthood in challenging a Michigan pro-life law requiring minors to obtain the consent of their parents before obtaining an abortion.” In addition, she “served as a lawyer for the ACLU in challenging a Michigan pro-life law that prohibited the use of public funds to pay for abortion,” and she “served as a lawyer for the ACLU and represented a halfway-house resident against federal officials who tried to prevent the resident from taking her baby’s life after the first trimester had expired.”

4. Needless to say, neither PPM nor Nessel moved to disqualify Gleicher. Nor could anyone else, as no one could take part as an intervenor in the case.

5. In her ruling yesterday, Gleicher acknowledged that Mahaffey is binding precedent on the proposition that the Michigan constitution’s “generalized right of privacy … does not embrace a right to abortion.” But she evaded that precedent by contending that a supposedly distinct “right to bodily integrity” wasn’t at issue in Mahaffey, and she of course found that the Michigan law violates that right.

6. Both Whitmer and Nessel immediately celebrated the state’s loss in court, and Nessel declared that she “has no plans to appeal.”

Let’s see if Planned Parenthood of Michigan gives Gleicher another Planned Parenthood Advocate Award.

Law & the Courts

This Day in Liberal Judicial Activism—May 18

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1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000. Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990. According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.” 

The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts. Just kidding: There is no sign that follow-up investigations of any sort ever took place. 

2011— More than thirty years after the end of his presidential term, Jimmy Carter’s sorry legacy of appointments to the Ninth Circuit lives on. Judge Stephen Reinhardt, joined by two other Carter appointees, rules that DaimlerChrysler, a German corporation, is subject to personal jurisdiction in California in a case in which Argentinian residents allege that an Argentinian subsidiary of DaimlerChrysler collaborated with Argentinian security forces to commit atrocities in Argentina during Argentina’s 1976-1983 “Dirty War.” 

In January 2014, the Supreme Court will unanimously reverse Reinhardt. In her opinion for the Court, Justice Ginsburg will provide a primer on personal jurisdiction and condemn Reinhardt’s “exorbitant” holding. 

Reinhardt will remain in active status on the Ninth Circuit until his death in March 2018. 

2017—The Americans with Disabilities Act expressly defines “disability” to exclude “gender identity disorders not resulting from physical impairments.” In other words, the ADA does not confer any protections on a person who claims to have been discriminated against on the basis of such a gender identity disorder. 

The crystalline clarity of this provision somehow doesn’t stop federal district judge Joseph H. Leeson, Jr. In Blatt v. Cabela’s Retail, Inc., Leeson denies an employer’s motion to dismiss the ADA claims of a former employee who alleged that he had “Gender Dysphoria, also known as Gender Identity Disorder” and had been discriminated against on the basis of that condition. 

Among Leeson’s somersaults of reasoning: Leeson concludes that it is “fairly possible” to read the term gender identity disorders “narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.” 

What?!? We’re supposed to believe that it is “fairly possible” to read gender identity disorders to mean only gender identity (“identifying with a different gender”) and not to extend to disorders 

Further, the ADA’s general definition of disability involves an “impairment that substantially limits one or more major life activities of [an] individual.” Gender identity without “clinically significant stress and other impairments that may be disabling” wouldn’t be a disability. So what conceivable sense would it make to carve gender identity—but not gender identity disorders— out of the general term disability? 

Law & the Courts

This Day in Liberal Judicial Activism—May 17

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1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution. The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.” 

Daughtrey will be appointed by President Clinton to the Sixth Circuit later in 1993. 

2013—Crackheaded, indeed. In United States v. Blewett, Sixth Circuit judge Gilbert S. Merritt Jr., joined by fellow Carter appointee Boyce F. Martin Jr., holds that the more lenient sentences of the Fair Sentencing Act of 2010 apply to crack-cocaine offenders who were sentenced before the Act’s effective date. 

Merritt purports to recognize that “there is no equal protection violation without discriminatory intent,” and he acknowledges that when the 100-to-1 crack statute was adopted in 1986, “there was no intent or design to discriminate on a racial basis.” But he contends that the knowledge gained since 1986 about the disparate impact of the original minimums on blacks means that continued enforcement of those sentences is intentional discrimination. 

Under Merritt’s illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Clinton appointee Ronald Lee Gilman observes in dissent, there is no support for such a proposition. 

Some six months later, by a disturbingly close 10-7 vote, the en banc Sixth Circuit will reject Merritt’s reasoning. As Judge Jeffrey Sutton nicely sums it up in his majority opinion, the legal question is simple: 

“Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. § 109, consistent with the views of all nine Justices and all of the litigants in Dorsey v. United States (2012), consistent with the decisions of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.” 

Law & the Courts

This Day in Liberal Judicial Activism—May 16

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2011—In United States v. C.R., senior federal district judge Jack B. Weinstein issues a 349-page opinion (with an additional 50+ pages of appendices) holding that the Eighth Amendment prohibits applying the statutory minimum five-year term of imprisonment to a youthful defendant who pleaded guilty to one count of distributing child pornography. Here’s how criminal-procedure expert Orin Kerr prefaces his discussion of the ruling: 

“There are a lot of debates about ‘judicial activism’ in which some question whether the term has real meaning. Fortunately, there is always Jack Weinstein, whose activism is so over-the-top that it easily quiets the debates.” 

Some two years later, a Second Circuit panel will unanimously reverse Weinstein’s ruling. 

Law & the Courts

My ‘Firing Line’ Episode on Dobbs

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I was grateful to take part in a PBS Firing Line episode on Dobbs that aired over the weekend. I joined Margaret Hoover, the host of the series, and law professor Mary Ziegler.

Here are the video and transcript of the episode.

Law & the Courts

This Day in Liberal Judicial Activism—May 15

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2008The California supreme court, by a vote of 4 to 3, invents a right to same-sex marriage under the state constitution. Chief justice Ronald M. George’s majority opinion offers the usual false assurances that he’s not just making it up and imposing his own policy preferences. Even more brazenly, George tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.” In a sense, yes—when those provisions are faithfully and properly interpreted and applied. But not when judicial activists like George abuse them. 

Six months later, California’s citizens vote to override the court’s ruling by approving Proposition 8, a measure that amends the state constitution to protect traditional marriage (but that will itself later become the victim of egregious acts of judicial activism). 

Law & the Courts

Yale Law Professor Akhil Amar Refutes Critics of Dobbs Draft

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In an excellent front-page essay in the Wall Street Journal’s weekend Review section, Yale law professor Akhil Amar, who (at the risk of understatement) is widely recognized as among the top handful of constitutional scholars, provides a robust defense of Justice Alito’s leaked draft opinion in Dobbs. Amar, it’s worth noting, is a staunch liberal and explicitly identifies himself as “a Democrat who supports abortion rights but opposes Roe.”

Roe v. Wade is “ripe for reversal,” Amar explains, as it “lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length.” The “dire assessments” by many critics that the draft “would threaten a wide range” of other precedents “don’t stand up to scrutiny.” The “draft’s logic” distinguishes those other precedents in various ways and thus “reinforces” and “buttresses” them. Roe is also “decisively different … because, as Justice Alito’s draft opinion stresses, abortion uniquely involves destroying unborn human life.”

More broadly, there isn’t “anything unusual in the leaked draft’s treatment of precedent,” and “there is nothing radical, illegitimate, or improperly political in what Justice Alito has written.”

Law & the Courts

This Day in Liberal Judicial Activism—May 14

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1969Mired in scandal, Supreme Court justice Abe Fortas announces his resignation from the Court. Fortas’s resignation comes less than a year after President Lyndon B. Johnson’s unsuccessful effort to have Fortas succeed Earl Warren as chief justice. 

1970—President Richard M. Nixon, in one of the misdeeds for which he most deserves infamy, appoints Harry A. Blackmun to the Supreme Court. Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959. Before that, he had been in-house counsel for the Mayo Clinic. His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor. Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Day for January 22)—might fairly observe that the medical profession’s loss was the nation’s … loss.    

2009—Ramona Ripston, executive director of the ACLU Foundation of Southern California and (per its website) the individual “responsible for all phases of the organization’s programs, including litigation,” takes part in a confidential strategy meeting with counsel planning to file a federal lawsuit against Proposition 8. After counsel files the complaint in Perry v. Schwarzenegger, Ripston’s organization will file pre-trial and post-trial amicus briefs in support of plaintiffs, and Ripston will publicly “rejoice” over Judge Vaughn Walker’s August 2010 ruling against Proposition 8. 

But when Ripston’s husband, arch-activist Stephen Reinhardt, is assigned to the Ninth Circuit panel charged with reviewing Walker’s ruling, Reinhardt somehow will decline to recuse himself from the case. 

2020—In Hines v. Mays, a Sixth Circuit panel rules that Anthony Hines is entitled to a new trial on his conviction for a murder 35 years earlier because his attorney should have tried harder to blame someone else for the murder.  

Ten months later, the Supreme Court will summarily reverse the panel’s ruling. Reciting the “overwhelming evidence” of Hines’s guilt and the “farfetched” and “fanciful” theory that another man committed the murder, the Court faults the panel for an “approach [that] plainly violated Congress’ prohibition on disturbing state-court judgments on federal habeas review absent an error that lies beyond any possibility for fairminded disagreement.”  

Politics & Policy

Biden DOJ Letter Pushes Transgender Misinformation and Implies Gender Dysphoria Is a Disability

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Transgender flag at a protest against Trump administration policies in New York City, 2018 (Brendan McDermid/Reuters)

The Department of Justice recently sent a letter to state attorneys general to “remind” them of several federal constitutional and statutory obligations that allegedly prohibit discrimination on the basis of gender identity.

This letter follows the DOJ’s politicization of the department to support the Biden administration’s preferred policy positions. Notable examples include investigating parents for protesting critical race theory and transgender ideology at school-board meetings; suing Texas over its heartbeat law that protects life in the womb; and inserting itself into court cases challenging state laws in Arkansas and Alabama that prohibit providing minor children with puberty blockers, cross-sex hormones, and “gender transition” surgeries.

Rather than being medically authoritative and legally sound, the DOJ’s claims in the letter are based on gender ideology and are in lockstep with the Biden administration’s prioritization of and push for expansive gender-identity policies “simply everywhere” in the federal government (which I document in depth here).

In its letter, the DOJ falsely claims that “gender-affirming care” (which ranges from puberty blockers and hormones to breast removal, genital reconstruction, and facial feminization surgeries) is “medically necessary” and “well established within the medical community” despite growing evidence to the contrary and the lack of medical consensus both domestically and internationally. For instance, earlier this year, Texas’s attorney general determined that the sterilizing treatments and procedures used for gender transitioning could constitute child abuse when performed on minor children. The determination was vehemently opposed by the Biden administration, even though the Food and Drug Administration has never approved as safe or effective the use of puberty blockers or cross-sex hormones for children (or adults) who wish to transition, and the Centers for Medicare & Medicaid Services rejected a nationwide coverage mandate for adult gender-transition surgeries due to insufficient scientific evidence of medical necessity.

In short, the very treatments pushed by the Biden administration as harmless and routine are, in fact, experimental and progressively sterilizing and irreversible.

Along with the letter’s medical shortcomings, it also falls short in the legal department. The DOJ claims that gender-transition treatments, including for minors, are protected by the 14th Amendment’s Equal Protection and the Due Process Clauses. In support of this point, the letter relies on several DOJ amicus briefs and Fourth and Seventh Circuit cases involving access to school bathrooms for students who identify as transgender brought under Title IX and the Equal Protection Clause. The DOJ continues to push the unsettled Equal Protection Clause claim in its complaint challenging the Alabama Vulnerable Child Compassion and Protection Act that protects minors from medical gender-transition drugs and procedures.

The letter also claims that Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, which prohibit discrimination on the basis of sex in federally funded health care and education activities, respectively, also prohibit discrimination on the basis of gender identity. The letter cites extra-regulatory “notifications of interpretation” by the Department of Health and Human Services and Department of Education, where the departments unilaterally determined, in contradiction to duly enacted regulations (see here and here), that the sex-discrimination prohibitions in federally funded health care and education include discrimination based on gender identity.

Draft regulations supporting this position are currently under review at the White House and are expected to be formally revealed soon. But apparently the administration does not think it must wait for the legally required regulatory process before issuing statements of law that contradict existing regulations.

Taking a strange turn, the letter implies that those who identify as transgender, or at least those who experience gender dysphoria, could have a disability. Gender dysphoria is the clinical diagnosis of psychological distress people feel when they do not subjectively identify with their biological sex.

The Left had long ago rejected the idea that homosexuality was in any way a disability, but simply a variant of normal. Is the Biden administration really conceding that gender dysphoria makes people so different that it counts as a disability? Or is it simply claiming disability nondiscrimination protections for those with gender dysphoria because it is politically expedient?

The DOJ writes that, “Section 504 of the Rehabilitation Act of 1973 protects people with disabilities, which can include individuals who experience gender dysphoria. Restrictions that prevent, limit, or interfere with otherwise qualified individuals’ access to care due to their gender dysphoria, gender dysphoria diagnosis, or perception of gender dysphoria may violate Section 504.” Section 504 is the federal law that prohibits discrimination based on a person’s disability in federally funded programs and activities, including of state or local governments, colleges or other institutions of higher education, and corporations or private organizations.

Based on the DOJ’s statements, an uninformed reader would assume that Section 504 covers gender-dysphoria discrimination. But Section 7 of the same act explicitly states that for purposes of Section 504 (and other sections), “The term ‘individual with a disability’ does not include an individual on the basis of homosexuality or bisexuality[,] . . . transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” (emphasis added). Thus, Section 504 does not consider gender dysphoria a disability unless it is the result of a physical impairment, which is generally not the case. Yet no statements in the DOJ’s letter reflect this prohibition and qualification.

At best, the DOJ was sloppy with the letter’s medical claims and legal analysis in the administration’s rush to push gender ideology. At worst, the letter was a deliberate attempt to obfuscate the limits of gender medicine and the law in an attempt to “encourage” state attorneys general to push the Biden administration’s preferred policies over legal obligations.

Rachel N. Morrison is a fellow at the Ethics and Public Policy Center, where she works on EPPC’s HHS Accountability Project. She is a former attorney adviser at the Equal Employment Opportunity Commission.

Law & the Courts

This Day in Liberal Judicial Activism—May 13

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1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the federal Constitution. Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.” But, hey, activism happens—when, that is, reckless judges like Barkett are involved.

To make matters even worse: Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers. While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award. In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention. So much for the fact and appearance of impartiality.   

2019—Don’t be suckered by opportunistic invocations of the importance of stare decisis (adherence to precedent). 

In dissent in Franchise Tax Board v. Hyatt, the four liberal justices, objecting to the majority’s overruling of a 1979 precedent, gravely warn that “stability in the law” requires that the Court “overrul[e] prior precedent only when the circumstances demand it.” Their dissent triggers the usual media alarms that the Court will—as it certainly should—overrule Roe v. Wade. Just a week later, the same justices will be part of a five-justice majority (in Herrera v. Wyoming) that, without any sign of hesitation, overrules a precedent from 1896. 

2019—In Kayer v. Ryan, a divided panel of the Ninth Circuit grants federal habeas corpus relief to a state prisoner who was convicted of first-degree murder and sentenced to death more than two decades earlier. In his majority opinion, Judge William Fletcher, joined by Judge Michelle Friedland, holds that the prisoner’s counsel was deficient at the penalty phase of the trial and overturns the death sentence.  

In dissent, Judge John B. Owens (an Obama appointee) explains that the majority’s reversal of the death sentence flouts the highly deferential standard of the Antiterrorism and Effective Death Penalty Act (AEDPA) and ignores that the critical facts “are remarkably similar” to a previous case in which the Supreme Court summarily reversed the Ninth Circuit. 

In December 2019, twelve judges, including Owens, will dissent from the Ninth Circuit’s denial of rehearing en banc. Judge Carlos Bea’s 32-page dissent laments that “[l]ike clockwork, practically on a yearly basis since the Millennium, we have forced the Supreme Court to correct our inability to apply the proper legal standards under [AEDPA]” and credits the panel majority with taking “that tradition one step further … by re-writing AEDPA entirely.”  

One year later, the Supreme Court will issue a per curiam ruling overturning the Ninth Circuit panel and slamming its shoddy reasoning. 

Law & the Courts

Constitutional Interpretation Versus Policymaking on Abortion

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In a tweet yesterday, Steven Mazie, Supreme Court commentator for The Economist, wrote:

Criticize the judicial craft of Roe v. Wade all you like, but at least the ruling recognized, and tried to balance, two interests: fetal life and women’s autonomy. Alito’s draft lacks *any* reference to the latter. Women are erased from the calculus.

I tweeted a response to Mazie, but his brief tweet is wrong in so many revealing ways that I figured it might be worthwhile to expand my response.

One of the core criticisms of Roe is that it reads much more like a committee report on legislation than like a Supreme Court ruling on the meaning of the Constitution. As law professor John Hart Ely (who supported abortion rights as a matter of policy) famously put it, Roe “is not constitutional law and gives almost no sense of an obligation to try to be.” (Emphasis in original.) So it’s an odd spin to present that deep flaw as a redeeming virtue.

It’s not even true, though, that Roe “recognized” the “interest[]” of “women’s autonomy.” As Linda Greenhouse recently observed (and as feminist critics of Roe have long complained), “[w]omen were largely absent from Roe,” which “was really a decision about the right of doctors to exercise their judgment about a patient’s best interest without risking prosecution and prison.”

Roe, to be sure, did ramble a lot about the human fetus, which it incoherently labeled as mere “potential life.” But its ruling is so one-sided in favor of abortion—including, as I’ve explained, through a “health” exception that has been widely read to authorize unlimited abortion all the way to childbirth—that it is difficult to take seriously as an effort at “balance.”

Contra Mazie, Justice Alito’s draft in Dobbs acknowledges the competing policy arguments over abortion, including arguments based on “autonomy.” Alito’s core point is that it’s not the role of the Court to decide abortion policy. Mazie’s tweet might mislead some readers into thinking that Alito’s draft has a lengthy excursus on embryology. But the draft in fact says as little about “fetal life” as it says about women’s autonomy. That’s because the “calculus” that Alito is engaged in is determining what the Constitution has to say, explicitly or implicitly, on the matter of abortion, not in setting abortion policy for the nation.

While I’m at it, I will note that Mazie has a follow-on tweet in which he complains that “Alito’s draft gives no guidance on whether there’s a potential constitutional challenge to bans that prohibit abortion even when a woman’s life is at stake.” But the Court granted certiorari on the question whether “all pre-viability prohibitions on elective abortions are unconstitutional” (emphasis added), and Mississippi law itself has a broad exception for “medical emergency” that no one challenged, so this case would be an odd vehicle for addressing such an issue. What’s more, no state has ever enacted an abortion ban that would override the life of the mother, and it seems farfetched that any state ever would: Even proponents of the argument for constitutional “personhood”—an argument that would require states to enact broad protections for the lives of unborn human beings—support, and indeed appear to insist on, a life-of-the-mother exception.

Law & the Courts

This Day in Liberal Judicial Activism—May 12

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2005—Federal district judge Joseph F. Bataillon rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause. One year later, a unanimous Eighth Circuit panel reverses all of these rulings.

Law & the Courts

Roe/Doe Health Definition Would Be Thorn on an Uprooted Weed

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A reader inquires what the leaked Alito draft would mean for Doe v. Bolton, the companion case to Roe v. Wade that the Court decided on the same day in 1973. Justice Blackmun also wrote the majority opinion in Doe, and I daresay that it’s an even worse piece of judicial craftsmanship than Roe.

The plaintiffs in Doe challenged a recently adopted Georgia abortion law on various grounds. Among other things, they argued that an exception that allowed a physician to perform an abortion “based upon his best clinical judgment that an abortion is necessary” was unconstitutionally vague. In the course of rejecting this argument, Blackmun concluded that the statutory exception should be read to mean that the attending physician’s medical judgment of necessity “may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient.”

In Roe, Blackmun stated that even after viability a state must allow abortion “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” He also emphasized that Roe and Doe, “of course, are to be read together.” So Roe has been widely read to mean that the physician determining whether an abortion is “necessary” for the “health” of the mother may exercise his “medical judgment” in light of the factors that Doe sets forth. Under that reading, an abortionist has unlimited discretion to do an abortion at any time even after viability and all the way to childbirth. (In an opinion in 1998 dissenting from the denial of certiorari, Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, rejected that reading of Doe, opining that it “simply did not address” what is “required as a matter of federal constitutional law.”)

In its one mention of Doe (p. 27, note 40), the Alito draft states that Doe “has been interpreted by some to protect a broad right to obtain an abortion at any stage of pregnancy provided that a physician is willing to certify that it is needed due to a woman’s “emotional” needs or “familial” concerns. The draft opinion’s statement of the various “legitimate state interests” that a law regulating abortion might serve does not suggest that any such law must include the unlimited definition of health that Doe articulated. Even more to the point: The Mississippi law has an exception for “medical emergency” that is expansive but nowhere near as broad as Doe’s definition of health, and the draft’s conclusion that the Mississippi law satisfies rational-basis review makes no mention of Doe’s definition. It’s thus clear that, like a thorn on an uprooted weed, Doe’s definition of health has no existence apart from Roe.

Law & the Courts

Akhil Amar Calls Out Post-Roe Fearmongering

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No one would mistake Akhil Reed Amar of Yale Law School for a pro-life activist or any sort of enthusiast for overturning Roe v. Wade. But the prominent constitutional law scholar is known for being a straight shooter willing to call out those on his own side, even his own law school administration, when they are being intellectually dishonest or just plain wrong.

The aftermath of the Justice Samuel Alito Dobbs v. Jackson Women’s Health Organization opinion leak has seen a number of defenders of Roe trot out utterly misinformed myths that distort what the draft opinion would in fact do. Amar called out a number of them on his Amarica’s Constitution podcast.

First is the notion that the draft “takes away a right” and that “that’s something that the Supreme Court has never done before,” making this case different from others that establish rights. That assertion, or something very close to that, was made by Amar’s former student, Noah Feldman; his former classmate and the ACLU’s national legal director, David Cole; and preeminent constitutional scholar Laurence Tribe. Amar called them out by name and called that notion

preposterous. It’s not wrong. It’s plainly wrong. It’s about as wrong as it’s possible to be because every first-year law student in constitutional law learns the story of 1937, the so-called “switch in time,” when the New Deal meets the old Court, and the Court, under pressure from Franklin Roosevelt, who’s been reelected in 1936, basically abandons its earlier jurisprudence—so-called Lochner era—in which case after case after case, beginning in about 1880, and now we’re talking 50 years later, which is about the same time period as between Plessy and Brown or between Roe and today. So there are case after case after case in the Lochner era using the idea of liberty of contract and the Contracts Clause and the Takings Clause and the property idea—using ideas of contract and property, which are individual rights . . . . The Court had read these rights very broadly to limit what state and federal governments could do to protect employees . . . . The Court in the Lochner era, the old Court, struck down again and again all sorts of regulations of business and struck them down in the name of rights, in the name of contract and property.

This era came to an end against the backdrop of political pressure that famously included FDR’s court-packing scheme. Feldman even wrote a book on this chapter of Supreme Court history, but now it seems to slip his mind. Amar asked, “Noah, Larry, David, what are you talking about? . . . That’s one of the most famous shifts in Supreme Court precedent of all time.”

Cole’s commentary had attempted some degree of nuance by acknowledging that the Court’s 1937 overruling landmark, West Coast Hotel v. Parrish, “took away some rights of business owners, but its real effect was to expand rights protections for millions of Americans subject to exploitation by powerful corporations.”

“Baloney” is what Amar called this disingenuous attempt to distinguish “rights expansion versus rights protection.” To illustrate why, he rephrased Cole’s sentence with a slight change in language: “Suppose I said, Well, overruling Roe’s real effect, Dobbs’ real effect, would be to expand rights protection for millions of innocent, unborn Americans . . . unborn humans, subject to extermination by society. It’s the same thing, you see. That’s not a distinction, David. Surely, you must know that, right? This is very misleading.

Another one of their oversights, Amar continued, is that the Court’s other key abortion precedent, Planned Parenthood v. Casey (1992), “massively cut back on Roe v. Wade and . . . openly overruled at least two other post-Roe cases that were all about reproductive rights. What are you talking about? We’ve already done this in 1992.”

Another line that has made the rounds is “that other landmark cases establishing a whole host of individual rights, privacy rights and related rights, are in jeopardy” by the Dobbs opinion. Prominently making this argument are Leah Litman and a former student of Amar, Steve Vladeck, in Slate. They cited the Supreme Court’s precedents addressing contraception (Griswold v. Connecticut), sexual conduct between same-sex partners (Lawrence v. Texas), and same-sex marriage (Obergefell v. Hodges).

Amar asserts he is “passionate” about defending those precedents. To the notion that Griswold is at risk, he posed the question, “what are you talking about?” Citing Justice John M. Harlan’s separate concurrence on that issue, Amar said that “Griswold is easy and obvious under the Alito framework of” rights that are “deeply rooted” in history and tradition. “Lib law professors, you’re just trying to scare people with boogeymen or something about ‘Oh my God, Griswold is at risk.’ No, there’s no major movement to undo Griswold.” Roe’s reversal was a feature of every Republican Party platform over the last 40 years, and there has never been anything like that on Griswold. Its margin of support, Amar continued, is 9-0, including in Justice Alito’s testimony agreeing with the Court’s contraception precedents during his nomination hearing.

Amar continued: “Steve Vladeck, you’re my student, you’re my friend. What you said is absurd. OK? I’m calling bullshit on you because it’s absurd to think that Sam Alito or Clarence Thomas . . . or John Roberts for that matter” would support overturning Griswold. Unlike Roe, “Griswold does not involve the snuffing out of what many believe to be innocent, unborn human life” or invalidating the laws of 49 or 50 states or receiving “massive pushback” from one of the two major parties for the past 40 years. To Emily Bazelon, who made a similar point, Amar offered a wager of $100,000 with two-to-one odds against Griswold’s demise down the road.

To yet another trumpeter of the parade of horribles, Neal Katyal, who wrote an op-ed about Alito’s “road map to overruling Griswold,” Amar said, “Neal, you know I love you, but I do not love this piece. . . . No, this is exactly 100% wrong. Full stop.”

He continued that similarly “rock-solid” is the right to interracial marriage in Loving v. Virginia, which enjoys near universal support—and even referenced that a member of the Court, Justice Clarence Thomas, is in such a marriage. That outcome did not depend on “unenumerated rights analysis,” but included “explicit constitutional rights analysis” recognizing that “equal means equal.”

Amar’s broad conclusion: “America is not gonna move forward if we keep utterly mischaracterizing what the other folks are saying and why.” His corrective will probably be ignored by the many defenders of Roe who have made a habit of avoiding any discussion of the precedent’s grounding in the Constitution. But for those who have not decided to look the other way, it is a reminder of how egregious the disinformation in defense of Roe has become, and it is generated by so many distinguished legal commentators who should know better.

Law & the Courts

This Day in Liberal Judicial Activism—May 10

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2006—Mississippi attorney Michael B. Wallace, nominated to the Fifth Circuit by President Bush, is victimized by the ABA. In a scandalous process marked bybias, a glaringconflict of interest, incompetence (seehereandhere), astacked committee,violation of its own procedures,cheap gamesmanship, and ultimately,flat-out perjury, the ABA committee rates Wallace “not qualified.”  After Democrats regain control of the Senate in 2007, Wallace’s nomination is not resubmitted. 
 
2011—In what Chief Judge AlexKozinski’sdissent labels an “Article III putsch,” Ninth Circuit outlaw StephenReinhardtissues a 77-page majority opinion (inVeterans for Common Sense v.Shinseki) that would place the Department of Veterans Affairs’ mental-health-treatment and disability-compensation programs under the direct supervision of a federal district judge. One year later, an enbancpanel of the Ninth Circuit will reverseReinhardtby a 10-1 vote, with even all five Clinton appointees on the panel voting againstReinhardt. 

Law & the Courts

Robert P. George: There Is No ‘Middle Way’ in Dobbs

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In the aftermath of last week’s outrageous leak of Justice Alito’s February 10 draft opinion in Dobbs, CNN reported that its sources say that Chief Justice Roberts, while purporting not to overturn Roe v. Wade, “is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy.” As I restated last week, I do not see how anything other than rank sophistry could support a conclusion that a 15-week ban is consistent with Roe, and I therefore cannot believe that the Chief is inclined to embrace it, much less that he would have any chance of inducing any of his colleagues to do so. But we shall see, I suppose.

In this First Things piece, Princeton professor Robert P. George neatly summarizes why no middle path exists between overturning Roe and invalidating the Mississippi law. Professor George draws on the more extensive essays by law professors Eric Claeys and Sherif Girgis that I have previously highlighted:

Scalia Law School Professor Eric Claeys has explained why the viability line was essential to Roe and Casey. As Claeys points out, both were “overbreadth” decisions. Such decisions invalidate a law on the ground that too many of the law’s potential applications would be unconstitutional—whether or not its application to the parties in the case at hand would be.

Thus, the Roe Court didn’t focus on how early or late in pregnancy Jane Roe had hoped to abort.  Her own timing was irrelevant because the Texas law at issue was overbroad. Why? Because too many of its potential applications would block a pre-viability abortion. So Roe’s whole basis for invalidating the Texas law was the supposed unlawfulness of banning abortions pre-viability. The viability line was therefore essential to Roe’s outcome—and, for similar reasons, to those of Casey and 11 other Supreme Court cases. Thus, Dobbs could not, after all, uphold Mississippi’s pre-viability ban without contradicting Roe’s and Casey’s holdings….

[U]pholding Mississippi’s law under Casey’s rule against undue burdens before viability … wouldn’t just ignore the words “before viability”; it would transform the meaning of “undue burden.” In Casey, that phrase referred to incidental regulations of the abortion procedure—like waiting periods—that would make it too hard to abort at some stage of pregnancy, preventing abortions at that stage nearly as much as formal prohibitions would. But the law in Dobbs just is a prohibition. It doesn’t make abortions harder to obtain after 15 weeks; it makes them legally impossible. So the law cannot be upheld under Casey’s rule against “undue burdens.”

To decide otherwise would transform that phrase’s meaning from “regulation that has similar impact to a ban” to “actual ban that applies too early,” as Notre Dame Law Professor Sherif Girgis has noted. Thus, Girgis continues, “a finding of ‘no undue burden’ in Dobbs would be a play on words, employing a test that only rhymed with Casey’s.” And the new test would have “a new job, and reflect a new theory of abortion rights, that left nothing of Casey’s logic intact.”  First, instead of serving to “tell us the times in a pregnancy when [functional bans] are unconstitutional,” as in Casey, the phrase would “take on the quite different function of telling us how much time a woman must have between learning she is pregnant and facing a ban.”

Second, this new test would necessitate an equally “novel constitutional rationale for the resulting abortion right.” The justification would “have to be, not [Casey and Roe’s rationale] that the woman’s interest trumps the fetus’s until the fetus is viable, but a rationale less sensitive to changing judgments of fetal worth at different stages: that one way or another, pregnant women’s interests . . . entitle them to some fair opportunity to abort.”

Claeys and Girgis establish that a Dobbs “middle ground” would be no such thing. It would have to reject every part of Casey’s and Roe’s legal tests, and no part of it could rest on either precedent. The Court can either invalidate Mississippi’s law under Casey and Roe, or consign them to the ash heap of history.

Law & the Courts

This Day in Liberal Judicial Activism—May 9

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2018—At the Senate Judiciary Committee hearing on the nomination of Ryan Bounds to a Ninth Circuit vacancy, Senator Richard Blumenthal tries to take Bounds to task for his college writings. As David Lat aptly summed up those writings, Bounds simply “poked fun at the excesses of political correctness,” but his critics have instead unfairly “tar[red]” him as supposedly “biased against minorities, women and gays.”  

Blumenthal hilariously illustrates the point. He complains to Bounds that “You referred to fellow students as ‘oreos,’ ‘twinkies,’ ‘coconuts,’ and the like.” Bounds, in reply, makes the obvious point that he was “decry[ing] the use of those names.” Blumenthal, following up, objects: “But you referred to fellow students with those terms.” Bounds again points out that he “was complaining about the fact that other people referred to my fellow students that way.” 

Alas, Bounds’s nomination will be withdrawn two months later on the cusp of a final confirmation vote, when Republican senator Tim Scott inexplicably appears to accept the Democratic smears. 

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This Day in Liberal Judicial Activism—May 8

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2019—“I dissent!,” exclaims Sixth Circuit judge Bernice Donald in Fowler v. Benson. The panel majority rejects a challenge to a Michigan law that requires that a person’s driver’s license be suspended when that person has failed to pay fines. But Donald opines that enforcement of that law against indigent drivers “without regard to their ability to pay and without affording them reasonable payment alternatives” violates their due process rights.  

2022—Happy Mother’s Day! No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them with an androgynous Parents’ Day. Observing Parents’ Day would, she explained, be “more consistent with a policy of minimizing traditional sex-based differences in parental roles.” 

In that same report, the oh-so-“moderate” Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles; and urged that prisons be co-ed rather than single sex. (See relevant excerpts from the report.) 

Law & the Courts

Mike Paulsen and Rich Lowry on Dobbs

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There are so many good pieces on the draft Dobbs opinion on NRO and elsewhere that I ask your indulgence in my highlighting only two of them here.

Law professor Michael Stokes Paulsen, a longtime leader in the pro-life legal movement, declares Justice Alito’s draft opinion to be “magnificent” and a triumph for the Constitution, for the Court, for judicial courage, for principle, and for the rule of law. Read his entire “Three Very Enthusiastic Cheers for the Dobbs Draft.”

Rich Lowry, in “Scalia Was Right—Again,” reminds us of Justice Scalia’s “prescient” dissent in Planned Parenthood v. Casey in which he explained that the majority’s grandiose conceit that it could end the “national division” on abortion was (in Rich’s words) “outlandishly wrongheaded.” Rich concludes:

The Court should have listened to Scalia the first time. Now, Alito’s opinion opens the way for it, after one of the most catastrophic misadventures in its history, to finally heed his wisdom.

Law & the Courts

Three Very Enthusiastic Cheers for the Dobbs Draft

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Signs outside the Supreme Court during the March for Life rally, January 27, 2017. (Aaron P. Bernstein/Reuters)

Justice Samuel Alito’s draft opinion for the Court in Dobbs v. Jackson Women’s Health Organization, leaked to the press this week, is magnificent. The opinion, which would overrule Roe v. Wade and Planned Parenthood v. Casey, is brilliant — a masterpiece of judicial craft, clarity of analysis, precision of expression, and fidelity to the Constitution. If it or something very much like it emerges as the finished product, this will be the Supreme Court’s finest moment since Brown v. Board of Education overruled Plessy v. Ferguson in May of 1954, 68 years ago next week.

The Dobbs draft is a triumph — a triumph for the Constitution, for the Court, for judicial courage, for principle, and for the rule of law. It does not dodge but instead confronts directly, the essential issue: the constitutional indefensibility of Roe’s creation of a right to abortion. That question is unavoidably presented by the Mississippi law at issue in Dobbs. Mississippi bans abortions that Roe’s framework says must be permitted. To uphold the state’s law is necessarily to overrule Roe and Casey. At the same time, the Dobbs draft decides no more than is necessary: it explicitly distinguishes the constitutional question of abortion from any other; it leaves undisturbed, and preserved, any other holding of the Court; it leaves open broader questions not implicated by the challenge to Mississippi’s law, such as whether the Constitution affirmatively protects the right to life of the unborn as a matter of the “equal protection” of the laws; it does nothing more than return the issue of abortion to the people, acting through elected representatives in Congress and state legislatures.

Justice Alito’s draft brilliantly unites — bridges — the slight variations among the views of the conservative and moderate justices likely forming the majority. It provides a rationale that all can agree on. (There will be three dissenters, of course — the activist-liberal justices who favor abortion rights as a matter of policy and who would insist on reading that policy preference into the Constitution, as Roe did.) Alito’s opinion systematically destroys the “substantive due process” argument for a constitutional right to abortion — the argument on which Roe had relied. To be sure, the entire oxymoronic doctrine (“substantive process”?!) is beyond dubious as a matter of first principle. (Look for one or more possible concurring opinions to make that point.) But even taken on its own questionable terms, the notion that deeply embedded legal “tradition” or “history” has always supported a right to abortion as an essential aspect of liberty is simply insupportable. Alito’s draft is absolutely devastating on this score. Roe is indefensible on any legal theory (even an implausible one). The Alito opinion is direct and forthright on this point. It makes clear that Roe’s result (and Casey’s, following it) is not merely wrong but lies wholly outside the range of plausibly legitimate constitutional interpretation.

This is an important point. It has implications for the question of “stare decisis” — the judicial policy of (sometimes) adhering to precedent where a precedent is dubious but subject to reasonable disagreement. (The draft discusses precedent just a bit later.) Roe is more than arguably wrong. It is categorically wrong — egregiously, extremely, atrociously wrong. Nothing in the Constitution’s text, structural logic, or historical evidence of intent or meaning supports a right to abortion. Roe simply made up a right and read it into constitutional language that in no way supports such a conclusion. (The Alito draft slices an alternative argument for abortion, predicated on “equal protection,” to ribbons in a few swift, deft strokes.)

Planned Parenthood v. Casey in 1992 reaffirmed Roe (in its essence and in the main) largely on the basis of the doctrine of stare decisis. The Court even then was unprepared to say — indeed, appeared to deny — that Roe was correct as a matter of straightforward interpretation of the Constitution. Should the Supreme Court deliberately adhere to a flatly and egregiously wrong constitutional decision just because it decided an issue the way it did in the past? The principal legal argument for abortion as a constitutional right has become that the Court in Roe once said it was, whether defensibly or not, and that the Court should stick to Roe right or wrong as a matter of stare decisis, not constitutional merit.

The problematic notion of stare decisis in constitutional law has long vexed the justices. Justice Alito’s draft handles the issue with extraordinary care and finesse, once again uniting the somewhat different approaches of different justices. His analysis is persuasive: The Court has not hesitated to overrule prior decisions it has come to conclude were wrong and has done so on a great many occasions. Indeed, some of the Court’s most important, magnificent landmark decisions have involved the explicit overruling of long-standing but deeply flawed precedent. (Brown v. Board of Education, repudiating Plessy’s awful and racist invention of “separate but equal” constitutional doctrine, is only one of many memorable examples.) Whatever the proper role of precedent, Alito writes, it is surely relevant — and grounds for overruling such precedent — how deeply and indefensibly wrong the prior decision was; how weak its legal analysis was; how unworkable the constitutional rule it created is; how seriously it disturbs the fabric of the law in other respects; and how weak the argument is for finding that the decision itself has generated legitimate and justifiable reliance beyond the mere expectation or desire that a wrong rule remain the wrong rule. (That last factor was argued as a basis for adhering to Plessy, too.)

In patient, careful discussion, Justice Alito’s draft demonstrates how all of these factors point decisively toward overruling Roe and Casey. In this respect also, as with its discussion of the merits, the Dobbs draft is a masterpiece.

The Dobbs draft would return the issue of abortion to the democratic process — to state legislatures and in certain respects to Congress — and would go no further. In this respect, it is amusing and ironic that some abortion-rights reactors (“commentators” would probably go too far, as their statements do not reflect any reading or understanding of the draft opinion) have condemned the draft for having been issued by “unelected” and “undemocratic” judges, imposing their “tyranny” on the nation. The New York Times quoted a first-year law student to this effect. (It’s exam time at law schools right now; I hope this student does a little better than this on the final.) The irony is that the Dobbs draft would return the question of abortion to elected branches and the democratic process and remove the issue from courts — it would end undemocratic usurpation of authority by the judiciary.

My reading of the draft is that, in returning the issue to democracy, it would not foreclose the further constitutional legal argument that certain state laws permitting abortion might deny the “equal protection of the laws” to a category of human “person” arguably embraced by the Constitution. Some conservative legal commentators have expressed concerns (or gripes) with the draft on this score, but I think without good justification. The opinion goes as far as necessary to decide the case and no further; it does not deny, but (quite the reverse) seems to affirm, the humanity of the living human embryo or fetus, in the course of its discussion of the precise legal issues it treats; it would provide an excellent grounding for the next stage of the debate, in legislatures and in courts. To my mind, it would strongly support a power of Congress to exercise its power to “enforce” the 14th Amendment’s terms (under Section Five of that amendment) in favor of assuring equal protection of the right to life of unborn, living human beings gestating in their mothers’ wombs. All of this is to the good. At the same time, the opinion — significantly — would not support a congressional power to enact a Roe equivalent by statute on the premise that this would be enforcing “substantive due process” rights to abortion under that amendment. The Dobbs draft, as noted, makes clear that such a reading of the Constitution lies outside the bounds of fair and plausible construction of the document.

And as noted at the outset, by not rejecting “substantive due process” entirely, the draft preserves some other popular decisions under the doctrine. The draft posts a clear “Dobbs Does Not Disturb” sign by any other decisions. It pointedly distinguishes the situation of abortion — in part precisely because abortion, uniquely, involves the destruction of embryonic human life. (Contraception, same-sex marriage, sexual conduct, and family arrangements generally, the subject of other decisions by the Court, present no such issue.)

All of this assumes of course that the draft opinion (probably with the addition of footnotes or passages responding to arguments raised in the expected dissents) becomes, in slightly modified form, the eventual holding of the Court. I believe it will (though I am always hesitant to offer firm predictions). Expressions of left-wing and pro-choice outrage at the draft — why on earth are they acting so surprised? This was long in coming and does not seem at all unexpected — will not cow the Court. The Dobbs draft is an act of constitutional principle, of courage and conviction, and of restoration of democracy. To repeat: This reasons to be the Roberts Court’s finest hour and the most important act of principled judicial interpretation of the Constitution in more than half a century. Criticism and shrieking, by some, should not lead to abandonment of constitutional principle. (Some forget that Brown was not popular in all quarters at the time it was decided. It triggered massive resistance, for decades, by deeply entrenched opposing interests. One can reasonably expect the same with Dobbs. One can reasonably hope for the same firmness in adherence to principle as characterized the Court in the post-Brown years.)

What about the leaker or leakers? The simplest explanation is probably the most likely: a young hothead, on the left, outraged, incensed, desperate, and heedless, leaked the opinion to generate what he or she believed would be similar expressions of outrage by others. (It might be an old hothead, of course.) Take it from a former young hothead — and now a much older hothead! Emotion and anger are almost certainly what drove the leaker to leak. Implausible conspiracy theories — a double-reverse, triple-bank-shot, statue-of-liberty-play, false-flag conservative scheme to forestall feared defections from the draft’s majority! — strike me as far-fetched.

The effort here was to derail a decision on the cusp of its announcement, by bringing political pressure to bear on those in the expected majority. It is likely to be a futile effort. We will know for certain within a few weeks. Until then, the Dobbs draft deserves three cheers — even if the cheering must remain tentative. The decision, if it turns out to resemble the draft, will join the pantheon of greatest Supreme Court decisions of all time.

Law & the Courts

Linda Greenhouse’s Invisible Precedent

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In a New York Times piece today titled “Justice Alito’s Invisible Women,” Linda Greenhouse complains that Justice Alito’s leaked draft opinion supposedly “whitewashes decades of progress on women’s rights.” She contends in particular that Alito “break[s] with decades of Supreme Court practice” in citing the Court’s 1974 ruling in Geduldig v. Aiello, which held that California did not engage in invidious discrimination in violation of the Equal Protection Clause when it operated a disability insurance program that did not pay insurance benefits for disability that accompanies normal pregnancy and childbirth. As part of her claim that Geduldig is no longer a precedent, Greenhouse states:

While the court has never formally overruled Geduldig, it has not cited it to address a claim of sex discrimination since the 1970s.

Greenhouse completely omits any mention of the Court’s 1993 ruling in Bray v. Alexandria Women’s Health Clinic, even though the very source she links to states that the majority opinion by Justice Scalia in Bray “invoked Geduldig in a statutory case concerned with proving sex-based animus in abortion-clinic protests.” That omission is all the odder as Alito, in his suitably brisk rejection of the Equal Protection theory for abortion that only “some of respondents’ amici” (and not the abortion clinics or the Biden administration) “have now offered,” invokes Bray as well as Geduldig:

Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretext[] designed to effect an invidious discrimination against members of one sex or the other.” Geduldig v. Aiello (1974). And, as the Court has stated, the “goal of preventing abortion” does not constitute “invidiously discriminatory animus against women.” Bray v. Alexandria Women’s Health Clinic (1993). Accordingly, laws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures. [Citations simplified.]

Greenhouse vaunts an amicus brief that (in her summary) contends that “the Geduldig decision [has been] effectively superseded by” more recent precedents, but that amicus brief does not even mention Bray.

It’s thus no surprise that neither the respondent abortion clinics nor the Biden administration even bothered to toss in an Equal Protection argument. The fact that the Biden administration believes that men can get pregnant—look who’s really rendering women invisible—would add another obstacle to such an argument.

Law & the Courts

This Day in Liberal Judicial Activism—May 6

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2016—Anticipating the imminent prospect of a liberal majority on the Supreme Court, Harvard law professor Mark Tushnet encourages the Left to abandon what he somehow imagines to have been an era of “defensive-crouch liberalism.” Among his modest and genial recommendations: 

The Left “should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided” and should “aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.” 

Rather than try to “accommodate the losers” in the culture wars, the Left should take a “hard line” against its fellow citizens. “Trying to be nice to the losers didn’t work well after the Civil War.” And “taking a hard line seemed to work reasonably well in Germany and Japan after 1945.” 

“Finally (trigger/crudeness alert), f*** Anthony Kennedy.” (Except Tushnet doesn’t use asterisks.) 

2021—One tenet of transgender ideology is that sex and gender identity are coherent distinct concepts, but this supposedly fundamental distinction suddenly disappears when it stands in the way of a litigation victory. 

Addressing the meaning of a state statute enacted in 1975 that governs amending a birth certificate’s statement of a person’s “sex,” the Utah supreme court asserts (in In re Sex Change of Childers-Gray) that “biological sex, as it is understood in the birth-certificate context, may transform according to how a transgender individual chooses to respond to their [sic] gender dysphoria,” irrespective of “observable external attributes.” 

In solo dissent, Justice Thomas Lee argues that the word “sex” in the 1975 statute is properly “understood as a reference to biological sex.” The statute, Lee explains, allows a change in the designation of sex on a birth certificate “upon discovery of a mistake in the biological sex designation made at the time of a child’s birth, or a showing that the biological features of an intersex person have developed differently than expected at birth” and perhaps even when “a person can demonstrate that the biological indicators of sex have been altered, as by sex-reassignment surgery”—but not “on the mere basis of a change in ‘gender identity.’”

Law & the Courts

This Day in Liberal Judicial Activism—May 5

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1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that the definition of marriage as a union of a man and a woman presumptively violates the state constitution and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples. In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.

2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture.   

2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified”. 

Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36. (See here for a fuller account.)    

Law & the Courts

This Day in Liberal Judicial Activism—May 4

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2009—On the heels of Justice David Souter’s announcement of his decision to retire, Harvard law professor Laurence H. Tribe writes a letter to his protégé, Barack Obama, offering his nuggets of wisdom on how President Obama should seize the “opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.” Among the nuggets: Don’t nominate Sonia Sotomayor. Tribe explains: 

“Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.” 

Instead, Tribe recommends that Obama nominate Elena Kagan. As Tribe explains it, the techniques that Kagan deployed as Harvard law school dean “for gently but firmly persuading a bunch of prima donnas to see things her way in case after case” would give her much more of “a purchase on Tony Kennedy’s mind” than Justice Breyer or Justice Ginsburg have. 

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Susan Collins vs. Susan Collins

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According to a reporter’s tweet, Senator Susan Collins stated today: “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.” But the record of Senator Collins’s own statements shows that it is she who is being “completely inconsistent.”

In her 2017 floor statement on the Gorsuch nomination, Collins stated:

I told him [Gorsuch] that it was important to me that the judiciary remain the independent check on the other two branches of government as envisioned by our Founders. Therefore, I asked him specifically whether anyone in the Administration had asked him how he would rule or sought any commitment from him on any issue. He was unequivocal that no one in the Administration had asked him for such promises or to prejudge any issue that could come before him. He went on to say that the day a nominee answered how he would rule on a matter before it was heard, or promised to overturn a legal precedent, that would be the end of an independent judiciary.

During the Judiciary Committee hearings, when Senator Lindsey Graham asked him a similar question about whether he was asked to make commitments about particular cases or precedents, he gave the same answer. In fact, Judge Gorsuch notably said that if someone had asked for such a commitment, he would have left the room because it would never be appropriate for a judge to make such a commitment, whether asked to do so by the White House or a United States Senator.

So Collins conveyed to the world back then that she understood that Gorsuch had not make any commitment about any precedent.

In her 2018 floor statement on the Kavanaugh nomination, Collins stated:

The judge [Kavanaugh] further explained that precedent provides stability, predictability, reliance, and fairness.  There are, of course, rare and extraordinary times where the Supreme Court would rightly overturn a precedent.  The most famous example was when the Supreme Court in Brown v. Board of Education overruled Plessy v. Ferguson, correcting a “grievously wrong” decision–to use the judge’s term–allowing racial inequality.  But, someone who believes that the importance of precedent has been rooted in the Constitution would follow long-established precedent except in those rare circumstances where a decision is “grievously wrong” or “deeply inconsistent with the law.”  Those are Judge Kavanaugh’s phrases.

In brief, Collins recognized back then that Kavanaugh would be open to overturning precedent that is “grievously wrong” or “deeply inconsistent with the law.” Consistent with Kavanaugh’s position, the draft Dobbs majority opinion explains that Roe “was egregiously wrong from the start”; that Casey “failed to remedy glaring deficiencies in Roe’s reasoning”; that it “relied on an exceptional version of stare decisis that … this Court had never before applied and has never invoked since”; and that “Roe and Casey have led to the distortion of many important but unrelated legal doctrines.”

Law & the Courts

The Supreme Court Must Have the Courage to End Roe‘s Corruptions of Our Body Politic

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A police officer speaks with an activist during a protest outside the Supreme Court building, ahead of arguments in the Mississippi abortion rights case Dobbs v. Jackson Women’s Health, in Washington, D.C>, December 1, 2021. (Evelyn Hockstein/Reuters)

J. R. R. Tolkien’s The Lord of the Rings saga tells of a ring whose power seduces all who come to possess it. Those who hold the One Ring sense the evil that lives within it. They know that the ring corrupts the souls of those who hold it, but they struggle to surrender it. Tolkien’s books tell of centuries of suffering caused by the One Ring and the difficulty of relinquishing and destroying it.

As explained in a recent law-review article, a similar story is unfolding right now at the U.S. Supreme Court. Our nation waits for the Supreme Court to decide Dobbs v. Jackson Women’s Health Organization. The justices have a chance to remedy a grave injustice and overrule Roe v. Wade. Will they be seduced by the power granted to them by cases like Roe and Planned Parenthood v. Casey? Many fear the consequences of overruling Roe. But the consequences of failing to act at this critical moment may be much worse.

Time and time again, proximity to Roe and Casey has transformed our leaders and institutions into Gollum-like, grotesque creatures that our Founders would not recognize. It’s turned the Supreme Court into a political-and-policy-making body and undermined its legitimacy. Our judicial appointment process has devolved into a partisan circus, with abortion precedents in the center ring. Not long ago, a prominent U.S. senator stood on the steps of the Supreme Court and threatened that the justices would “pay the price” and “not know what hit” them after the justices jeopardized his Precious by failing to adopt his preferred view of third-party standing in an abortion case. Now, there’s an unprecedented and shameful leak of a draft opinion in Dobbs. And with that leak, we should expect a loss of trust and collegiality at the Court.

Few issues divide Americans like abortion. These divisions will endure long after Dobbs. The Court cannot craft a social and health policy that will resolve these differences. Nor can it bring peace through half-measures. But national healing can begin by restoring our constitutional traditions and returning this long-running debate to the people.

That is, we must return to the solution provided by our Constitution: a confident federalism that allows for differences and fosters vigorous debate. The Court should seize this opportunity to return to the people and to the Court their traditional roles in our constitutional republic.

The Supreme Court granted certiorari in Dobbs on one question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” This question goes to the heart of our abortion precedents. After all, Roe’s “central rule” has long been understood to be that a state cannot ban pre-viability abortions. That holding abandoned our constitutional structure to achieve a policy goal.

To save Roe, Casey grounded the abortion right in “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” rather than constitutional text or structure. As Harvard’s Stephen Sachs has explained, “A Court that rests decisions of extraordinary social importance on nebulous notions like ‘the right to define one’s own concept of existence . . . and the mystery of human life’’’ promotes a public perception of the Court as a partisan actor unconstrained by the Constitution it purports to interpret. It transforms the Court into “a superweapon” that “is too powerful . . . to leave lying around in a democracy; sooner or later, someone is bound to pick it up.”

During oral arguments in Dobbs, Justice Sotomayor wondered how the Court would “survive the stench” created by overruling Roe and Casey. The news of the recent leak has caused those on the left to continue to beat that drum. But the stench comes not from overruling lawless precedents, but from preserving them. The Supreme Court cannot serve the rule of law by preserving precedents — like Roe and Casey — that subvert the rule of law and erode democratic discourse. The only way to eliminate the stench is to remove the source. As post-Casey experience teaches, spraying Febreze and hoping for the best will not fix the problem.

Some of Casey’s authors thought the Court could maintain its legitimacy by affirming a decision they found both legally and morally wrong. But affirming a wrong decision simply to maintain the justices’ own institutional authority is itself deeply wrong and wrongheaded.

Dobbs provides the Supreme Court a second chance to do what it wouldn’t do in Casey. The Court must voluntarily relinquish the power it seized in Roe and return the issue of abortion to the process of democratic discussion and debate that produces law. Doing so won’t resolve disagreements regarding abortion. But it might be might a first step toward healing a long-festering wound to our life together as a nation and to our judicial institutions.

At the end of The Lord of the Rings, Frodo makes a long and difficult journey to Mount Doom, where he plans to destroy the ring. At the last moment, he is overcome by the ring’s power and loses his resolve. Gollum tries to seize the ring for himself. As they fight over it, the ring falls into the fires of Mount Doom and is destroyed.

It’s not clear that any of the five Justices poised to overrule Roe are losing their nerve, and the recent leak will likely strengthen their resolve to do what they know is right. We don’t know who leaked the draft opinion. But whoever did it is just the latest in a long line of people and institutions who have been corrupted by Roe and Casey.

Law & the Courts

How the Court Should Proceed in Dobbs—Three Options

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A predictable effect, and perhaps part of the motive, of leaking the draft majority opinion in Dobbs is to incite crazy acts by unstable abortion fanatics. The best way for the Court to deter such acts is to issue its ruling in Dobbs forthwith.

The Court of course is free to depart from its usual practices whenever it deems that circumstances warrant departures. In an order in Murphy v. Collier in 2019, for example, the Court granted an application for a stay of execution in March, Justice Alito issued a dissent from that order six weeks later, and Justice Kavanaugh wrote an opinion responding to Alito’s dissent.

One option here would be for the Court to issue the majority opinion in Dobbs as soon as it is final—perhaps as early as today or tomorrow—along with whatever concurring opinions and dissents are ready at that time. Other separate opinions could be issued later, and the majority could then have the opportunity to respond to those separate opinions.

A second and cleaner option might be for the Chief to inform all of the justices that they need to have their votes and opinions ready to go by an imminent date certain—say, next Monday. Dobbs was argued way back on December 1, the draft majority opinion was evidently circulated in early February, and the issues are straightforward, so everyone has had plenty of time to draft opinions.

A third option would be for the Court to issue a short order now that concisely states that a majority of the Court reverses the Fifth Circuit, overturns Roe and Casey, and establishes that rational-basis review will govern state regulations of abortion. The order would also state that the full opinions in the case will be issued later.

Law & the Courts

This Day in Liberal Judicial Activism—May 3

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1984—Federal district judge H. Lee Sarokin modifies a consent decree to require that layoffs of New Jersey firefighters be on a proportional quota basis rather than (as state law provides) according to seniority. The result is that white firefighters with more seniority are to be laid off in favor of minority firefighters with less seniority. 

In an especially bizarre twist, Sarokin rules that his own order constitutes a compensable taking of the property (seniority rights) of white firefighters, and he orders the federal government, which opposed his order, to provide compensation for his taking! Sarokin expresses sympathy for the white firefighters, stating that they are “not themselves the perpetrators of the wrongs inflicted upon minorities over the years [but] are being singled out to suffer the consequences.” 

In June 1984, after the Supreme Court’s ruling in Firefighters v. Stotts forces Sarokin to change his order and to have seniority govern layoffs, Sarokin will change his tone and attack the white firefighters: “If they have not directly caused the discrimination to occur, many have certainly condoned it by their acquiescence, their indifference, their attitudes and prejudices, and even their humor.” 

2019—In a 300-page opinion (in Ohio A. Philip Randolph Institute v. Householder), a three-judge district court rules that Ohio’s congressional districting map is an unconstitutional “partisan gerrymander.” In a particularly bizarre move, the court gives the Ohio legislature barely a month to enact a new map. The court’s rushed deadline is some two weeks before the end of the Supreme Court’s term, in which important redistricting cases are pending. 

Three weeks later, the Supreme Court, without recorded dissent, will grant Ohio’s application for a stay of the district-court ruling. At the end of June, the Court will nullify the ruling, as it holds in Rucho v. Common Cause that claims of partisan gerrymandering are nonjusticiable. 

Law & the Courts

Outstanding Draft Majority Opinion in Dobbs

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I see no reason to doubt that the draft opinion in Dobbs that Politico has published and reported on is indeed what Politico says it is: a proposed majority opinion that Justice Alito circulated to his colleagues, evidently (according to the stamp it bears) on February 10, 2022. As Politico notes:

The draft opinion runs 98 pages, including a 31-page appendix of historical state abortion laws. The document is replete with citations to previous court decisions, books and other authorities, and includes 118 footnotes. The appearances and timing of this draft are consistent with court practice.

Above all, the superb quality of the draft is compelling evidence that it is genuine. It is difficult to imagine who outside the Court would have the time, ability, and motive to craft and release such a masterful document.

I’m going to pass over here the deep scandal that someone leaked this draft to the press. I’m instead going to offer a reader’s guide to the draft majority opinion. Before I do, though, let me emphasize that we do not know whether the draft has changed in any respects, major or minor, and we also do not know whether it or a successor version has garnered a majority. On this second point, Politico reports that a “person familiar with the court’s deliberations”—evidently, the leaker of the draft—says that Justices Thomas, Gorsuch, Kavanaugh, and Barrett “voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.”

The draft posted by Politico does not allow copying and pasting, so rather than try to retype large passages from it, I’m going to refer you to it and summarize it concisely.

Introduction (pp. 1-6)

Overview of what Roe wrought, how Casey reconceived (and in part overruled) Roe, and how Casey failed in its grandiose goal of imposing a final settlement. The Mississippi law at issue.

“We hold that Roe and Casey must be overruled.” There is no explicit or implicit right to abortion in the Constitution. Abortion is not within the category of rights that have been held to be guaranteed in their substance by the Due Process Clause. Far from being deeply rooted in the nation’s history and implicit in the concept of ordered liberty, it was a crime at all stages of pregnancy in three-quarters of the states when the 14th Amendment was adopted. It is also “fundamentally different” from “the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage,” as it destroys what Roe and Casey called “fetal life” and what the Mississippi law describes as an “unborn human being.”

Stare decisis “does not compel unending adherence to Roe’s abuse of judicial authority.” Roe was “egregiously wrong from the start,” its reasoning was “exceptionally weak,” and it has had “damaging consequences.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives…. That is what the Constitution and the rule of law demand.

Part I (pp. 5-8)

The Mississippi law and procedural background

Part II (pp. 8-35)

The Constitution does not confer a right to obtain an abortion. Neither Roe nor Casey invoked the Equal Protection Clause, and our precedents squarely foreclose such a theory.

Our decisions have held that the Due Process Clause protects two categories of substantive rights, but neither applies here. (Pp. 11-14.) Abortion had long been a crime in every state, first at common law (in at least some stages of pregnancy) and then via a wave of statutory restrictions that expanded criminal liability for abortion. “By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.” (Pp. 15-30.)

Abortion is not an integral part of a broader right to privacy. What sharply distinguishes abortion from the rights recognized in cases like Loving v. Virginia and Griswold v. Connecticut is that abortion destroys what Roe and Casey called “fetal life” and what the Mississippi law describes as an “unborn human being.” Those cases do not support a right to abortion. Our conclusion that the Constitution does not confer such a right “does not undermine them in any way.” (See also p. 62.) N.B.: Lots of folks who haven’t read the draft have been quick to contend otherwise. (Pp. 30-35.)

Part III (pp. 35-62)

Stare decisis does not counsel continued acceptance of Roe and Casey. Some of our most important decisions have overruled precedents, and the Court has overruled important constitutional decisions on lots of occasions. (See pp. 37-39, note 47, for a very long “partial list.”)

Five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error (pp. 39-41), the quality of their reasoning (pp. 41-52), the workability of their rules (pp. 52-58), their disruptive effect of other areas of the law (pp. 58-59), and the absence of concrete reliance (pp. 59-62).

Part IV (pp. 62-65)

Casey was wrong to contend that the preservation of public approval of the Court weighed heavily in favor of retaining Roe. “[W]e cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by extraneous influences such as concern about the public’s reaction to our work.” Casey made an unprecedented claim to judicial power, and it misjudged the practical limits of the Court’s influence.

Part V (pp. 65-67)

State regulations of abortion shall be subject to deferential rational-basis review. Mississippi’s law is constitutionally permissible under that standard.

Legitimate state interests include respect for and preservation of prenatal life at all stages of development, the protection of maternal health and safety, the elimination of particularly gruesome or barbaric medical procedures, the preservation of the integrity of the medical profession, the mitigation of fetal pain, and the prevention of discrimination on the basis of race, sex, or disability.