Ethics & Public Policy Center

"Painfully Awkward"? No, Just Plain Stupid

Published in National Review Online on April 24, 2007



In the aftermath of the Supreme Court’s ruling upholding the constitutionality of the Partial-Birth Abortion Ban Act of 2003, some confused critics have charged that the decision of the five justices in the majority to defer to the democratic processes somehow constitutes the imposition of their own supposed religious views.  One such critic is a prominent law professor.  Within three hours or so of this professor’s online publication of his musings, EPPC President Ed Whelan responded with a series of posts on National Review Online’s Bench Memos blog.  Here are Mr. Whelan’s responses:

Professor Geoffrey Stone of the University of Chicago Law School has just posted his profoundly confused thoughts on the partial-birth abortion case. Stone first misrepresents the ruling in the case. If indeed there are exceptional circumstances in which partial-birth abortion is the safest method of abortion (the point, contrary to what Stone asserts, is hotly contested and, given the remarkable series of lies that opponents of the legislation have offered, their credibility is highly suspect), it is open to those so believing to show that and to carve out exceptions.  Those attacking the law tried to use a facial challenge to invalidate the law in its entirety.

Stone then asks what explains the decision.  His answer:  The “painfully awkward observation” that “[a]ll five justices in the majority are Catholic” and “have failed to respect the fundamental difference between religious belief and morality.”  His charge is as offensive as it is baseless.  Consider:

1.  The five justices in the majority were not imposing their own religious beliefs.  They were deferring to the entirely reasonable moral judgments of the American people, manifested through bipartisan majorities in Congress. Justice Kennedy’s majority opinion explains that the law serves the proper governmental objective of expressing respect for the dignity of human life and of protecting the integrity of the medical profession. Stone may well disagree with those objectives, and he may well disagree that the law serves them, but it is absurd for him to contend that the five justices are imposing their own religious views when they let the democratically enacted law take effect.

2.  It is the four justices in dissent who have a consistent record of misconstruing the Constitution to impose their own substantive policy preferences. Stone claims that the dissenters “all voted in accord with settled precedent” but that precedent is neither settled nor faithful to the Constitution.

3.  Stone presents his former boss, Justice Brennan, as a model of a Catholic justice

“separat[ing] his personal religious views from his views as a justice.”  From Stone’s account, one would think that Brennan reluctantly joined Roe v. Wade because the Constitution compelled him to.  That account is ridiculous at many levels.  Whatever Brennan’s “personal religious views,” he plainly favored abortion as a matter of policy, and it’s clear that he was the moving force behind the ludicrous Roe opinion.

*  *  *

A sign of the care that Geoffrey Stone put into his eruption is his assertion that “many laws [sic] schools … teach intact D & E.”  I know that the pro-abortion pressure is overwhelming at elite law schools, but not even I believe that students are now being taught how to do abortions.

*  *  *

It seems highly likely that Geoff Stone has not even read the majority opinion.  He clearly believes that the majority accepted and relied on the congressional findings that he finds so objectionable.  But in fact the majority states that some of the findings “are factually inaccurate” (whether because they were inaccurate at the time or have been superseded).  Indeed, the majority specifically notes (slip op. at 35-36, Professor Stone, in case you care to read the opinion) that some medical schools do teach intact D&E and that there is not a medical consensus that intact D&E is never medically necessary.

*  *  *

From Geoff Stone’s opening paragraph:

Gonzales reversed an earlier decision, Stenberg v. Carhart, in which the Court had held a virtually identical state law unconstitutional, primarily because it failed to include an exception to protect the health of the woman. In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation. The majority accepted  those findings even though, as Justice Ginsburg observed in an unusually scathing dissent, those findings were nothing more than political nonsense.

This is a laughably incompetent account of the case:  Apart from the fact that Gonzales did not “reverse[]” Stenberg, the statement of the majority’s use of the findings is flatly wrong.  A prospective law student who summarized the case this way should be encouraged to pursue another profession. The fact that a highly respected professor at one of the best law schools in the country could produce this account is stunning.

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