Patterico’s Pontifications

4/17/2008

Art and Life at Yale (Updated)

Filed under: Abortion, Education — DRJ @ 12:52 pm

[Guest post by DRJ]

Yale Art major Aliza Shvarts will do anything for her art:

“Art major Aliza Shvarts ‘08 wants to make a statement.

Beginning next Tuesday, Shvarts will be displaying her senior art project, a documentation of a nine-month process during which she artificially inseminated herself “as often as possible” while periodically taking abortifacient drugs to induce miscarriages. Her exhibition will feature video recordings of these forced miscarriages as well as preserved collections of the blood from the process.

The goal in creating the art exhibition, Shvarts said, was to spark conversation and debate on the relationship between art and the human body. But her project has already provoked more than just debate, inciting, for instance, outcry at a forum for fellow senior art majors held last week. And when told about Shvarts’ project, students on both ends of the abortion debate have expressed shock . saying the project does everything from violate moral code to trivialize abortion.

But Shvarts insists her concept was not designed for “shock value.”

“I hope it inspires some sort of discourse,” Shvarts said. “Sure, some people will be upset with the message and will not agree with it, but it’s not the intention of the piece to scandalize anyone.”

The “fabricators,” or donors, of the sperm were not paid for their services, but Shvarts required them to periodically take tests for sexually transmitted diseases. She said she was not concerned about any medical effects the forced miscarriages may have had on her body. The abortifacient drugs she took were legal and herbal, she said, and she did not feel the need to consult a doctor about her repeated miscarriages.

Shvarts declined to specify the number of sperm donors she used, as well as the number of times she inseminated herself.”

Reaction to her project has been mixed.

UPDATE - The Yale Office of Public Affairs has posted this statement at its website:

“Statement by Helaine S. Klasky — Yale University, Spokesperson
New Haven, Conn. — April 17, 2008

Ms. Shvarts is engaged in performance art. Her art project includes visual representations, a press release and other narrative materials. She stated to three senior Yale University officials today, including two deans, that she did not impregnate herself and that she did not induce any miscarriages. The entire project is an art piece, a creative fiction designed to draw attention to the ambiguity surrounding form and function of a woman’s body.

She is an artist and has the right to express herself through performance art.

Had these acts been real, they would have violated basic ethical standards and raised serious mental and physical health concerns.”

I may be wrong, but I picture Aliza as the poster child for precocious, creative, free-spirited children of parents who never said “No.”

H/T Anonymous Yale Student.

– DRJ

1/23/2008

A Paean to (Liberal) Precedent at the Los Angeles Times

Filed under: Abortion, Constitutional Law, Court Decisions, Dog Trainer, General, Judiciary — Patterico @ 10:54 pm

The L.A. Times tells us that Roe is a landmark ruling — and we must follow precedent, precedent, precedent:

That appalling possibility [a reversal of Roe] should trouble all the justices, but particularly Roberts. For him to overturn Roe would be to contradict his stated devotion to precedent and to turn his back on his mentor, former Chief Justice William H. Rehnquist. In Dickerson vs. the United States, which challenged whether suspects must be read their Miranda rights for their statements to be admissible in court, Rehnquist wrote for the majority in 2000 that regardless of whether justices supported the original Miranda decision, it had become “part of our national culture” and therefore deserving of protection. Roe, in the same way, created a now well-established right that would cause severe upheaval if it were overturned.

Sadly, too many conservatives attack judicial activism, then practice it.

Luckily, the L.A. Times is consistent. For example, when the Supreme Court overruled Bowers v. Hardwick in Lawrence v. Texas and struck down a law criminalizing homosexual sodomy, the paper’s editors stood for precedent. They aren’t hypocrites who invoke precedent only when it serves the liberal agenda. They stood foursquare behind the principle of stare decisis.

Oh, wait . . . they didn’t.

I’m shocked!

Message to Religious Conservatives: Giuliani Would Appoint Solid Supreme Court Justices

Filed under: Abortion, General, Judiciary — Patterico @ 7:00 am

It took Nixon to go to China. It took Bill Clinton, a Democrat, to get control of the federal deficit. (Sorry, conservatives, but it’s true.) And it might take Rudy Giuliani to appoint solid Supreme Court Justices.

With Fred Thompson out of the race, judicial conservatives are looking for a candidate. John McCain? Three words: Gang of 14. Mike Huckabee? He’ll never be President. Mitt Romney? Ehhhh . . . he might be OK — but I think he comes across to voters as too slick and unprincipled. And there may be a reason for that.

But there’s no reason, in my judgment, to question Rudy Giuliani on the issue of judges. This is the argument made in a September 2007 New York Times op-ed piece that I think is worth resurrecting with Thompson’s exit. The op-ed was written at a time when Giuliani was looking much stronger in the polls, but the substance of the op-ed still holds:

I think Mr. Giuliani will be the most effective advocate for the pro-life cause precisely because he is unreligious and a supporter of abortion rights.

The author makes a very persuasive case:

In a televised Republican debate, Mr. Giuliani said it would be “O.K.” if Roe were overturned but “O.K. also” if the Supreme Court viewed it as a binding precedent. Despite this ambivalence, Mr. Giuliani promises to nominate judges who are “strict constructionists.” His campaign Web site explains: “It is the responsibility of the people and their representatives to make laws. It is the role of judges to apply those laws, not to amend our Constitution without the consent of the American people.”

Roe v. Wade, with no textual warrant in the Constitution, struck down the states’ democratically enacted restrictions on abortion. By fighting Roe, pro-lifers aim not to make abortion illegal by judicial fiat, but to return the decision about how to regulate abortion to the states, where we are confident we can win.

Our greatest obstacle is the popular belief that overturning Roe would automatically make abortion illegal everywhere. In fact, our goal may well be undermined by politicians like President Bush, who seem to use “strict constructionist” as nothing more than code for “anti-abortion.”

Only a constitutionalist who supports abortion rights can create an anti-Roe majority by explaining that the end of Roe means letting the people decide, state by state, about abortion.

Mr. Giuliani’s ambivalence about the end of Roe is consistent with his belief that judges should not seek to achieve political ends. This is a judicial philosophy that pro-lifers should applaud, not condemn. It is, after all, the position consistently articulated by the pro-life movement’s favorite Supreme Court justices: John Roberts, Samuel Alito, Clarence Thomas and Antonin Scalia.

Indeed.

I am ambivalent about abortion myself. I’m not confident that abortion is “murder” from the very moment of conception. But I think the inflexible law created by the Supreme Court has created a set of rules that allow abortions too late, for flimsy or nonexistent justifications.

But regardless of your personal view, we should all be able to agree that the issue should be decided by We the People and not nine lawyers wearing robes.

I think Rudy believes that. Last time I checked, Rudy’s advisory committee was people with folks I respect and trust on this issue, like Ted Olson and Miguel Estrada. These are not weak-kneed adherents of a living Constitution, and I don’t think Rudy is either.

Mr. Giuliani makes the same arguments that we pro-lifers make. But he can be more persuasive because he will not be perceived as trying to advance his own religious preferences. By taking the side of pro-lifers for democratic, but not devout, motives, a President Giuliani could shake up the nearly 35-year-old debate over Roe v. Wade.

I agree. I think Rudy could make that happen — if only Republicans would allow him to be the nominee.

Threads like this tend to devolve in a free-for all debate about abortion. Please try to stay on topic, addressing the issue of who would be the best candidate for the Supreme Court.

12/24/2007

Quote of the Month

Filed under: Abortion, General — Patterico @ 8:38 am

Via Michelle Malkin:

Over the course of the evening, a few friends call. Each time I say something like, “You know, we were going to go out, but Emily’’s just not feeling well.”

This is true. She has been nauseated for almost a month. I tell them, “We’’re just going to stay in and stay warm.”

Emily listens carefully from the other room. The abortion is no one’’s business but ours, we’’ve decided.

Brian Goedde, writing about his girlfriend’s abortion . . . in the New York Times.

11/14/2007

Colorado Initiative would Define Personhood as a Fertilized Egg

Filed under: Abortion, Law — DRJ @ 6:35 am

[Guest post by DRJ]

In an initiative that could have a significant impact on abortion in Colorado, the Colorado Supreme Court allowed a group to begin collecting signatures for a ballot initiative that would define personhood as a fertilized egg:

“The Colorado Supreme Court today released a decision giving proponents the go-ahead for a ballot initiative that would amend the state Constitution in 2008 to define personhood as a fertilized egg. Opponents of the measure, which would lay the constitutional foundation for making abortion illegal in the state, asked the court to reject the ballot title as misleading to voters.

The court ruled that the measure’s wording is clear and meets state requirements in terms of covering a single subject. The measure, if approved by voters, would extend constitutional protection from the moment of conception with regard to rights of life, liberty, equality of justice and due process of law.

The group pushing the measure, Colorado for Equal Rights, can now begin gathering the 76,000 signatures required to put the issue on the November 2008 ballot.”

Planned Parenthood and other opponents of the initiative are working to ensure its defeat:

“Planned Parenthood of the Rocky Mountains is one of the reproductive-rights groups opposing the measure, which it said in a statement would have sweeping consequences for women using contraception to prevent pregnancy as well as for couples using in-vitro fertilization to start families.

Planned Parenthood has called the ballot initiative “deceptive and dangerous.”

I think of liberal Aspen celebrities and Ward Churchill when I consider Colorado politics but it is also the home of Tom Tancredo. With a political range like that in one (relatively small) state, this will undoubtedly be a volatile issue. Overall, though, Colorado seems an unlikely state to define personhood at fertilization.

– DRJ

9/30/2007

Toobin: No Woman Has Ever Regretted an Abortion

Filed under: Abortion, Books, General, Judiciary — Patterico @ 3:41 pm

In his book “The Nine,” Jeffrey Toobin says:

“While we find no reliable data to measure the phenomenon,” Kennedy wrote, “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Small wonder that Kennedy found no such data, because, notwithstanding the claims of the antiabortion movement, no scientifically respectable support existed for this patronizing notion.

Place to one side the fact that (as Toobin knows damn well) if anyone tried to conduct any kind of scientific study regarding abortion, it would be bitterly opposed by NARAL et al. on privacy grounds.

Is “scientifically respectable support” really necessary for the proposition that “some women come to regret their choice to abort the infant life they once created and sustained”? Does Toobin truly think that no women regret their abortions?

If so, let me set him straight.

I recently wrote a post linking a piece I had seen in the Daily Mail, which quotes women who have had abortions. Of the six women whose abortions are recounted in the piece, four regretted their decision. Let me remind you of some of their quotes:

Sarah Giles:

Today, I still have a huge sense of loss and feel that we did the wrong thing. Mike and I are still together, although the abortion nearly split us up.

I hope that one day we’ll get married and have children together - but I will never forget. Even today, I see pregnant women or happy young mothers with their babies and think: “That could have been me. It makes me cry.”

Sarah Fry:

My abortion haunted me for years afterwards. . . . When [my baby] was born in August of this year, I was thrilled - but when I look at her I sometimes think of the pregnancy I terminated.

Doctors haven’t confirmed a link between my abortion nine years ago and the subsequent miscarriages, but I can’t help but wonder if they’re connected - and inside I do sometimes blame myself.

Varria Russellwhite:

I was given a pill and then a pessary the following day, which induced a miscarriage. I was not prepared for what followed. After eight hours I gave birth to a small but fully formed baby.

As I watched the nurse carry it away in a pool of blood, I felt so hollow at the waste of a life. I could clean the mess off me, but couldn’t wash the guilt from my mind.

Sue Hulbert:

When I came to, I felt devastated about what I had done and immediately regretted it. I went home with this aching, empty feeling.

Alan didn’t wait long before cutting his ties with me and I fell into a deep depression. It took me so long to get out of bed each morning because I had to imagine I was dressing and feeding my lost baby. I gave him a name, Patrick.

One night, I wrote letters to my family and friends and took an overdose of antidepressants. But it wasn’t enough - and the next day I was woken by the phone. It was Alan, who realised I could barely speak and called an ambulance.

After writing this post, I got comments from a number of women with similar experiences. For example, one woman said:

My best friend 1st year of college was suicidal cause her s.o. pressured her into two abortions. I visited the graveyard w/her where she grieved her child.

Another said:

At age 16 I made the decision to terminate my unplanned pregnancy. Is it really a decision when a 16 year old makes it? In retrospect, I don’t think so. My priorities were so shallow I couldn’t see beyond the next month, the next year.

That was 25 years ago. Do I still think about this child? Yes. Do I regret the “decision” I made? Yes. . . . I will never forget or forgive myself for taking the life of my own child.

And our friend Rightwingsparkle wrote an excellent post which noted:

In these many years I have heard many post abortive women speak and their anguish is hard to hear. Dr. Martin Luther King Jr.’s niece was on Fox News the other night describing the pain of her 2 abortions. She is an active pro-lifer now. Norma McCorvey, Jane Roe of the infamous Roe v. Wade case is an active pro-lifer now, she describes how they used her in that court case and told her to lie and say that she had been raped.

Maybe I have found the only women who regret their decision, among the tens of millions of abortions that have occurred since Roe v. Wade was handed down. I rather suspect there are more — several hundred thousand more, if not millions. But I can’t prove that.

So no, Mr. Toobin, I have no “scientifically respectable support” for Justice Kennedy’s “patronizing notion” that “some” women regret their abortions. All I have is quotes from actual women themselves.

As the kids say: Duh!

9/15/2007

Lying to Women Considering Getting an Abortion: A-OK

Filed under: Abortion — Patterico @ 4:56 pm

But telling them the truth about their baby’s development, of course, would be seen by many as a terrible imposition on their sacred rights . . .

The Supreme Court of New Jersey has ruled that it’s OK to lie to women about the state of their pregnancy while they are deciding to have an abortion.

New Jersey’s supreme court has just decided that, as far as state law is concerned, an abortionist can give false information to a woman trying to decide whether to have an abortion.

Is there a “baby in there”? That’s what Rose Acuna wanted to know from her obstetrician-gynecologist. She was six to eight weeks along at the time. “Don’t be stupid. It’s only blood,” the physician, Sheldon Turkish, allegedly replied. (Turkish argues that he probably said, “It’s just tissue.”) So, three days later, Acuna went ahead with the abortion.

Turns out it wasn’t “just tissue.”

This ties in nicely with a piece I recently saw in the Daily Mail, which quotes women who have had abortions. Guess what? Of the six women whose abortions are recounted in the piece, four regret their decision.

Here’s Sarah Giles:

Today, I still have a huge sense of loss and feel that we did the wrong thing. Mike and I are still together, although the abortion nearly split us up.

I hope that one day we’ll get married and have children together - but I will never forget. Even today, I see pregnant women or happy young mothers with their babies and think: “That could have been me. It makes me cry.”

And Sarah Fry:

I was 18 when I went to my doctor and asked for an abortion. I’d only been with my boyfriend for a month. No obstacles were put in my way, and the whole process was so incredibly quick and smooth that I never really had the chance to think if it was something I really wanted to go through with.

. . . .

My abortion haunted me for years afterwards. I split up with the boyfriend I’d been with then, but when I met Martin and we started trying for children it took almost a year for me to conceive.

Then, at seven weeks, I had a miscarriage. I tried not to think about the abortion, but in January 2006, when we lost another baby at seven weeks, I was inconsolable.

In fact, I suffered two more miscarriages before getting pregnant with Tayla in December 2006.

When she was born in August of this year, I was thrilled - but when I look at her I sometimes think of the pregnancy I terminated.

Doctors haven’t confirmed a link between my abortion nine years ago and the subsequent miscarriages, but I can’t help but wonder if they’re connected - and inside I do sometimes blame myself.

Varria Russellwhite:

I was given a pill and then a pessary the following day, which induced a miscarriage. I was not prepared for what followed. After eight hours I gave birth to a small but fully formed baby.

As I watched the nurse carry it away in a pool of blood, I felt so hollow at the waste of a life. I could clean the mess off me, but couldn’t wash the guilt from my mind.

Sue Hulbert:

When I came to, I felt devastated about what I had done and immediately regretted it. I went home with this aching, empty feeling.

Alan didn’t wait long before cutting his ties with me and I fell into a deep depression. It took me so long to get out of bed each morning because I had to imagine I was dressing and feeding my lost baby. I gave him a name, Patrick.

One night, I wrote letters to my family and friends and took an overdose of antidepressants. But it wasn’t enough - and the next day I was woken by the phone. It was Alan, who realised I could barely speak and called an ambulance.

Multiply these women’s experiences by several hundred thousand and you’ll get a sense of what we’re looking at.

But if you told women the truth about what is going on inside them — and how they might feel afterwards — that, of course, would be unconstitutional.

I believe it was Yakov Smirnov who said: “What a country.”

UPDATE: Dawn Eden has some disturbing quotes from a woman whose quotes were edited out of the Daily Mail piece. This woman says she would do the same thing again — but it’s clear that the experience has scarred her life:

By the time I had the abortion, I was 15 weeks and two days pregnant. I went into hospital with my best friend for moral support, and the nurse gave me tablets to bring on labour. Because I was so far into the pregnancy, I had to give birth rather than have a straightforward abortion.

It was horrendous. After two hours the contractions started, and I clung onto the hand of the midwife. Once I felt the baby starting to come, I had to go into the toilet and let it drop onto a stainless steel tray.

“Don’t look,” said the midwife. “Keep your eyes straight in front of you and walk away immediately.” There was no way I could have looked down and seen my baby. I was numb.

By then I was bleeding heavily, but I was allowed to go home. I went straight to bed and told my mum I had a very heavy period. For two days I lay in bed, shocked and exhausted, but I still I knew I had done the right thing.

Three months later, I started university. I coped by just blanking the abortion out. I would make the same decision again, but it has affected my life. I am paranoid about getting pregnant, and haven’t had a successful relationship since.

Another abortion success story.

7/19/2007

Democrats Pledge to Provide Federal Health Insurance Coverage for Abortions

Filed under: 2008 Election, Abortion — Patterico @ 12:01 am

The Chicago Tribune reports:

Elizabeth Edwards said Tuesday that her husband’s health-care plan would provide insurance coverage of abortion.

Speaking on behalf of Democratic presidential candidate John Edwards before the family planning and abortion-rights group Planned Parenthood Action Fund, Edwards lauded her husband’s health-care proposal as “a true universal health-care plan” that would cover “all reproductive health services, including pregnancy termination,” referring to abortion.

Obama says: me too!

Asked about his proposal for expanded access to health insurance, Obama said it would cover “reproductive-health services.” Contacted afterward, an Obama spokesman said that included abortions.

The goal: to make abortion safe, legal, and rare frequent.

7/15/2007

Louisiana Bans Some Type of Abortion Procedure, the Details of Which Are Unclear to Us at the Moment . . .

Filed under: Abortion, Dog Trainer — Patterico @ 12:45 pm

From the June 14 L.A. Times comes this mealy-mouthed report:

A type of late abortion is restricted

From Times Wire Reports
July 14, 2007

Gov. Kathleen Babineaux Blanco signed legislation in Baton Rouge that penalizes doctors who perform a late-term abortion procedure, making the state the first to restrict the surgery since a similar federal ban was upheld this year.

The new law allows the procedure only when the pregnant woman’s life would be endangered without it. It would be a crime in all other cases, including when the pregnancy is expected to cause health problems for the woman.

What type of late-term abortion procedure was criminalized? I think you know, but you have to read between the lines to figure it out:

The statute mirrors one that President Bush signed into law in 2003. In April, the U.S. Supreme Court upheld the federal Partial-Birth Abortion Ban Act. Under the Louisiana legislation, doctors face fines up to $10,000 and jail terms of up to 10 years.

I love the way they dance around this topic. While the rest of us are calling a spade a spade, the L.A. Times is calling a spade a type of digging tool.

4/27/2007

If I Thought He Understood What He Was Saying, This Answer Might Just Earn My Vote

Filed under: 2008 Election, Abortion — Patterico @ 8:16 pm

In last night’s debate of Democrat presidential contenders, the candidates were offered the chance to bash the Supreme Court’s partial-birth abortion decision — and each candidate duly did so. From the transcript, here was the very next question asked, together with Gov. Richardson’s answer:

MODERATOR BRIAN WILLIAMS: We’d like to ask the same question of all of you, down the line, in order, and it calls for you to say a name or to pass. And Governor Richardson, we’re going to start with you. The question is, your model Supreme Court justice.

GOV. RICHARDSON: It would be Justice Whizzer White.

MR. WILLIAMS: How about someone who is among the living? (Laughter.)

GOV. RICHARDSON: It would be — and in this particular case, Judge Ginsburg, who said that this was an erosion of a woman’s right to choose and degraded the ability of a woman to protect herself health-wise.

Who volunteers to tell Gov. Richardson how Justice White voted in Roe v. Wade?

(H/t: JCG.)

UPDATE: Matthew J. Franck has much more.

4/25/2007

Prof. Stone Backtracks — Without Admitting It

Filed under: Abortion, Constitutional Law, Court Decisions, General — Patterico @ 5:06 pm

In a new post, Prof. Geoffrey Stone backtracks from his earlier assertion that Catholicism, and not legal principle, was behind the majority decision in the partial-birth abortion case. Stone now suggests that he was merely posing the question:

I also acknowledge that the fact that all five Catholic Justices voted together in this case to make up the 5-to-4 majority might have nothing to do with their religion. These five Justices often vote together on matters having nothing to do with religion. Perhaps Carhart was just coincidence. Perhaps it was a reflection of their common approach to constitutional law that has nothing to do with their religious convictions. The point of my post was to pose the question and to invite people to think about it.

In this passage, Prof. Stone reveals that he interprets his own posts almost as poorly as he interpreted the partial-birth abortion decision. Prof. Stone may well have intended for his post simply to “pose the question” whether religious convictions formed the basis of the opinion. But, as written, his post actually asserts that this is what happened.

The post was titled Our Faith-Based Justices. Here are some of the passages which show that Prof. Stone was not just posing a question — he was making an accusation:

What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. . . It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. . . . By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. . . . As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman “to determine her life’s course” is at stake, it is not for the state — or for the justices of the Supreme Court — to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one’s personal religious faith.

. . . .

As the Court observed fifteen years ago, “Some of us as individuals find abortion offensive to our most basic principles of morality, but than cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example.

(All emphasis mine.)

If that is not an accusation that the Justices ignored legal principles in favor of their moral and religious beliefs, then the English language has no meaning.

Prof. Stone tries to illustrate his point by hypothesizing that Brown v. Board of Education was decided by a closely divided vote, and then reversed by Justices from segregationist states. Wouldn’t we draw a connection there? he asks.

But Prof. Stone loads the dice by proposing a hypothetical opinion — one supporting segregation — that nobody thinks has a principled basis in Constitutional law. In marked contrast, there are many principled arguments for a decision rejecting abortion (and particularly partial-birth abortion) as a Constitutional right. As I explained this morning, this principled view is shared by at least two Justices in the majority (Scalia and Thomas) and possibly two more (Alito and Roberts). Prof. Stone may disagree with the argument that abortion is not protected by the Bill of Rights — but it would be laughable to call that argument unprincipled.

Once again, Prof. Stone has produced an extraordinarily unpersuasive blog post.

4/24/2007

“I Take It You’re Not a Lawyer” — My E-Mail Exchange with Chicago Law Professor Geoffrey Stone Regarding His Mischaracterization of the Partial-Birth Abortion Decision

Filed under: Abortion, Constitutional Law, Court Decisions, General, Law — Patterico @ 12:00 am

Below is my e-mail exchange with Chicago Law School Professor Geoffrey Stone, regarding his recent mischaracterization of the partial-birth abortion decision.

The payoff is near the end, when Professor Stone ends one of his e-mails to me by saying: “I take it you’re not a lawyer.”

Heh.

The debate is lengthy, and I imagine that only those who have read the partial-birth abortion opinion will make their way through all of it. Here is the brief rundown for those of you who lack the patience to slog through it all; this also serves as a preview and summary for those of you who will read the whole thing.

Our debate focuses on Prof. Stone’s claim (made in this blog post) that “[i]n the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation.”

As you will see from the e-mails, it’s my belief that this statement of Prof. Stone’s is flatly incorrect. The Court not only declined to give the Congressional findings “dispositive weight,” but actually gave them no weight whatsoever. Prof. Stone asserts otherwise, but continually declines my repeated requests for him to provide any language from the opinion proving me wrong.

If you are tempted to treat “evidence” and “findings” as the same thing, let me set you straight right now, with an analogy. Let’s pretend you are the defendant in a contentious lawsuit. You go to court and argue your case to a judge, complete with evidence, and make an overwhelming case that you should not be liable. The judge rules your way, but makes some sloppy and inaccurate findings along the way. His findings may be unreliable, but that doesn’t mean your evidence has no convincing force. It just means that it was presented to a bad factfinder.

Now, assume that, on appeal, the appellate court said: the judge’s findings were terrible and we don’t accept them — but we find the evidence convincing, and rule that the defendant should still win. Wouldn’t you be upset if a bystander attacked the appellate court’s ruling as wrong, because it simply rubber-stamped the trial judge’s flawed findings?

That would be a strawman argument. It would be inaccurate and unfair. And it’s what Prof. Stone has done in attacking the partial-birth abortion decision.

I wish he would admit it, but as you will see, he refuses to do so.

(By the way, when we speak of the Congressional findings, we are talking about the findings relevant to the relative safety of the abortion procedures discussed in the opinion. There are other Congressional findings, regarding the rationale for the law, but in one of our final e-mails, Prof. Stone and I agree that these are not the findings that we are discussing.)

Those of you who have actually read the opinion, tell me who you think has the better of the argument, the law professor, or the lowly blogger who may not even be a lawyer. Keep in mind that Stone used to be the Dean of the University of Chicago School of Law, which is one of the top law schools in the nation. (And if you say Prof. Stone has the better of the argument, that’s fine — but I want you to do what he fails to do, and back up your opinion with quotes from the decision.)

In a future post, I will discuss what is perhaps Stone’s more interesting contention: that the Justices in the majority ruled as they did only because they are Catholics. For now, I’m sticking to the issue of Prof. Stone’s mischaracterization of the opinion — mostly because I find it stunning, and also because it is relevant to his religious-based argument.

Here is the exchange. All emphasis is in the original e-mails:

(more…)

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