Patterico's Pontifications


Chicago Law Professor Gives Stunningly Incompetent Summary of Partial-Birth Abortion Decision

Filed under: Abortion,Court Decisions,General,Morons — Patterico @ 7:35 pm

University of Chicago Law School professor Geoffrey Stone has this jaw-droppingly incompetent analysis of Gonzales v. Carhart, the partial-birth abortion decision:

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.

If I were grading Professor Stone’s exam paper, I would give him an “F.”

Here is a passage from page 35 of the majority opinion:

In reaching the conclusion the Act does not require a health exception we reject certain arguments made by the parties on both sides of these cases. On the one hand, the Attorney General urges us to uphold the Act on the basis of the congressional findings alone. Brief for Petitioner in No. 05–380, at 23. Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress’ findings. The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. See Crowell v. Benson, 285 U. S. 22, 60 (1932) (“In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function”).

Compare the two passages I have bolded. You can go back and add all the context you like, and it won’t change a thing. Stone got it dead wrong.

As Ed Whelan observes:

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.

Prof. Stone’s post is an embarrassment to the University of Chicago Law School.

17 Responses to “Chicago Law Professor Gives Stunningly Incompetent Summary of Partial-Birth Abortion Decision”

  1. I can hear the good Professor now:

    “Why should I have to READ the whole decision? Have you SEEN IT?? It’s, like, over 60 pages long!! Besides, I’ve got the NARAL talking points on my email. They were only 12 bullet points long. That is all the legal analysis anyone needs anyway.

    Phew! Typing this has really tired me out.

    I’m gonna have a nice long lie down now.”

    Rich Horton (8018ee)

  2. I have had a high regard for the University of Chicago Law School. Thus, it’s especially disappointing to see that Professor Stone teaches several ConLaw courses that are presumably part of Chicago’s core curriculum. Law school courses depend on the professor’s subject knowledge and ability to teach. I may have to change my opinion of UChicago Law.

    DRJ (50237c)

  3. Be fair, Patterico: The post isn’t an embarrassment to Chicago; it’s an embarrassment to Geoff Stone. Chicago just has to be embarassed that it granted him tenure.

    Don’t worry, DRJ. Everyone at Chicago knows where Stone is coming from and can discount with the appropriate levels of salt.

    Leif (037db9)

  4. I’d be more interested in your reaction to the posters at Balkin’s site.

    AF (2455cd)

  5. Our esteemed host is in error, not because his criticism is invalid, but because he has forgotten (not really, I suspect) Professor Stone’s intended audience.

    If I were grading Professor Stone’s exam paper, I would give him an “F.”

    Trouble is, Professor Stone was not writing an exam paper, and his intended audience wasn’t a bunch of other lawyers who would do anything radical like actually read the Court’s decision.

    Rather, his untended audience were the people who would be swayed by the fact that he is a professor at the University of Chicago Law School and therefore an Authority. (I say this despite the fact it was the UC “Faculty Blog.”

    Professor Stone made an interesting typo that actually says a lot more than he intended:

    Among Congress’s clearly erroneous “findings” were its assertions that no medical schools provide instruction on intact D & E, that intact D & E is never necessary to safeguard the health of the woman, and that intact D & E is less safe than alternative procedures. Each of these “findings” was and is false. In fact, many laws schools, including Chicago, Northwestern, Yale, Columbia, teach intact D & E; there is a clear medical consensus that in particular circumstances intact D & E is necessary to protect the heath of the woman; and there is a clear medical consensus that in particular circumstances intact D & E is safer than the alternative procedures.

    Emphasis mine.

    Yup, that’s right: many law schools do teach what he wrote! 🙂

    Dana (3e4784)

  6. Perhaps our host’s readers will recall when some of our honorable Democratic senators seemed so opposed to Catholic nominees for judicial posts that it became noticeable, and there were real accusations of an anti-Catholic bias.

    It looks like Professor Stone wants to feed into that fire:

    What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. 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. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is “immoral” and may be prohibited even without a clear statutory exception to protect the health of the woman.

    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. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. 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.

    Nawww, no anti-Catholic movement there!

    Dana (3e4784)

  7. Prof Stone is a long-time contributor to the Chicago Tribune. He is merely a knee-jerk, leftist politcal hack. Any analysis from him is based, in my opinion, on making a determination as to which leftist template he wishes to pursue, and then finding some legal basis on which to support his opinion.

    He is merely an advocate, not a legal mind. He may or may not be an adequate professor; he is certainly not a brilliant constitutional scholar.

    Dale (b48357)

  8. All that needs to be said is that this hack once worked for an even bigger hack: Justice Brennan.

    gahrie (de5a83)

  9. Jack Balkin

    Justice Kennedy argues that the government may ban intact D&E because it has the right, under the Casey decision, to ensure that a woman’s choice is informed. Kennedy then argues that given a mother’s natural love for her child, some women will regret having abortions after the fact. And some women may especially regret having an abortion if they knew the details of the procedure– intact D&E– used to perform the abortion. Hence, Kennedy argues, the state may ban that procedure, because it will cause some women not to have abortions, and because it will force doctors to “find different and less shocking methods to abort the fetus in the second trimester.”

    There is a problem with this argument– it would seem that the proper remedy is to inform the woman and then let her decide if she wants to undergo the intact D&E procedure. But at the very least, Kennedy’s argument suggests that the state could take the lesser step of requiring doctors to inform the woman about all the details of the D&E procedure she will have to undergo and about what will happen to the fetus.

    If that is correct, then Gonzalez v. Carhart is quite important. It might lead states to pass a wide range of new laws under the rubric of “informed consent” that would require doctors to show women the results of ultrasound imaging of the fetus before it is aborted, to describe in gruesome detail how the fetus will be terminated, dismembered and removed, to offer the state’s views on the existence of any pain the fetus might feel when it is destroyed; and, in general, ratchet up the emotional anxiety of women who are about to undergo abortions.

    The state will justify all of these demands to doctors under the rubric of informing women about their choices and the consequences of those choices. Pro-choice advocates will point out that these attempts at “informed consent” go far beyond that. They are attempts to frighten and upset women in the hopes that they will not have abortions. The problem, however, is that Kennedy’s language encourages the passage of these new laws (South Dakota has already adopted one); it suggests that many of them may be constitutional. Thus Kennedy’shis opinion opens the door for states to pass increasingly unreasonable versions of abortion restrictions designed to frighten, manipulate, and discomfit women under the guise of providing informed consent.

    This consequence of Gonzales v. Carhart is hardly accidental. It is the result of a long and sustained strategy by pro-life advocates that has now borne fruit in Supreme Court doctrine. In his discussion of informed choice and in his purple prose about the natural bonds of love between mothers and children– call it Kennedy’s “mother and child reunion” speech– Justice Kennedy adopts some of the rhetoric of Operation Outcry– an anti-abortion group which has honed the new style of pro-life rhetoric. The basic goal of this new rhetoric is to undermine the notion that women exercise any kind of choice when they decide to have abortions. It seeks to turn the rhetoric of the pro-choice movement on its head. Women, the new rhetoric argues, don’t really understand what they are doing when they decide to have abortions; as a result, they often regret having them later on.

    The amicus brief that Justice Kennedy cites for these propositions was written on behalf of Sandra Cano, who was the original Mary Doe in Doe v. Bolton, the companion case to Roe. Cano regrets her association with Doe v. Bolton (she did not in fact have an abortion), and she sees in her experience the experience of all women. Anti-abortion activist Harold Cassidy has been instrumental in refining this style of argument over the past decade, even coming up with an invented medical syndrome, post-abortion syndrome (or PAS) that women suffer as a result of making the immoral and unnatural decision to have an abortion. As Justice Ginsburg’s dissent explains, the medical evidence for PAS is flimsy; there is no evidence that women suffer more stress from having abortions than from having to bear and raise children that they aren’t prepared to mother. PAS is junk science that has been championed by a new generation of anti-abortion advocates to explain why almost any woman would be out of her mind to undergo an abortion.

    But don’t take my word for it. Listen to Harold Cassidy himself:
    Let’s talk about the woman who has given her baby up to adoption. The woman who gives up the baby, turns the baby over, signs the relinquishment document, and then goes home to sleep, and can’t sleep. The woman makes the decision, and what she doesn’t know is what it feels like after she’s given up the baby, and then she goes home and she finds out she can’t sleep, and it was a mistake and she loves the baby, and her heart is breaking, and she thinks the baby will hate her, and it’s not good for the baby, and the baby should be with her mother, etc. etc. etc. But she at least has the protection of the law that says she can go back and say, ‘You know what, I changed my mind.’
    What if that same phenomenon is present in abortion. There are women who think they are informed, and later find out that they are not informed. And that phenomenon comes in many degrees. There can be women, and there are some, surely, who make a decision that is informed, and it is voluntary, and even they will find out later that it’s not. They’re not liberated by it; they’re enslaved by the experience. In fact, in many ways they were enslaved by the experience before they made this so-called free and informed decision, because there is a culture and society and sexual partners who have come to expect her to be able to perform or to act in a certain way, and those expectations have enslaved her. Not only have they enslaved her in terms of her ability to get an abortion, but also to behave in ways that lead to the pregnancy in the first place.

    Cassidy’s argument is that because of the kind of culture we live in, women who think they know what they are doing when they have abortions actually don’t know. They only think they know at the time. Later on, they will come to regret it, and we can say that they weren’t informed. And because we can’t tell which women will come to regret the decision later on, the state needs to pass laws that discourage all women from having abortions.

    This is the New Paternalism that is now central to the rhetoric of the pro-life movement. Either a woman is crazy when she undergoes an abortion, or she will become crazy later on.

    Forgive them Father, for they know not what they do.

    The new rhetoric of pro-life forces is no longer just rhetoric. It’s now part of Supreme Court doctrine. That is the big news about Gonzales v. Carhart.

    AF (2455cd)

  10. Given that there’s a fair amount of (perhaps legitimate) griping from conservatives that liberal-leaning colleges and grad schools don’t hire conservative-leaning professors, shouldn’t we applaud conservative-leaning Chicago Law for their giving a liberal such as Stone a place to hang his hat?

    stevesturm (d3e296)

  11. Herr professor must be angling to be Hillary’s first Supreme Court nominee.

    Perfect Sense (b6ec8c)

  12. AF–

    The fact that Justice Kennedy is in favor of meaningful state regulation of abortion is not news. He would have upheld the previous (state) bans on PBA, and had written Casey to allow such.

    Kennedy felt that the Court (and especially O’Connor) turned its back on the Casey compromise when it struck down the state PBA bans in 2000. His dissent to that was a 9 on the Scalia scale.

    If I was a state legislator and I wanted to, say, ban abortions in the last trimester (unless there is a clear and present danger to the mother’s life), I’d do it now, expecting 5 votes.

    Kevin Murphy (0b2493)

  13. No Catholics need apply…

    By claiming, as Professor Stone does, that opposition to abortion from people who happen to be Catholic is the attempt by Catholics to impose their religion on everyone, the liberals are seizing the separation of church and state argument. You don’t…

    Common Sense Political Thought (819604)

  14. As with Justice Ginsburg, evidently Prof. Stone believes the outcome is more important than honest jurisprudence (in specific cases, of course).

    bains (174b02)

  15. Bains, surely you didn’t mean just Justice Ginsburg? You might wish to include Justices Breyer and Stevens in that group.

    Dana (556f76)

  16. […] practitioners are largely regarded as "obnoxious and arrogant" in the classroom and "jaw-droppingly incompetent" out of it. Small wonder trust in government has hit a fifty-year low. Welcome to government […]

    America's Death by Professor (48dc6e)

  17. […] are largely regarded as “obnoxious and arrogant” in the classroom and “jaw-droppingly incompetent” out of it. Small wonder trust in government has hit a fifty-year low. Welcome to government […]

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