Patterico's Pontifications


“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.”


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:

Prof. Stone,

I was surprised to read your blog post asserting:

In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation.

Given that the opinion itself states:

Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress’ findings.

The opinion then explains the flaws in the Congressional findings — flaws that you implied that majority had overlooked.

You have badly mischaracterized the holding of the opinion. If a law student summarized the opinion the way you did, he would deserve a failing grade.

You owe your readers a correction.

I will assume any response you give me is for publication, unless you specifically request otherwise.

Patrick Frey
Patterico’s Pontifications

He replied:

With all due respect, the Court offered no other principled basis for distinguishing its earlier decision, which was otherwise directly incompatible.

I replied:

Prof. Stone,

The fact that you find the majority’s arguments to be unprincipled does not entitle you to claim that the Court said the opposite of what it actually said.

You claimed that, in the majority’s view, the “critical difference was that in enacting the federal law Congress made several findings to support the legislation.”

But the majority explicitly addressed the issue of whether Congress’s findings should be given dispositive weight, and specifically rejected the argument that they should.

The Court explained that Congress’s findings were not dispositive, because the Court has an independent duty to assess the evidence. Further, the Court observed that certain of Congress’s findings were wrong — something that your post falsely implied that the majority didn’t even realize.

The Court offered another reason for reaching a different result than it had reached in Stenberg — namely, that the evidence presented to Congress and to the trial courts showed that each side had medical support for their respective positions. The Court then held that Congress’s legislation could be upheld given that medical uncertainty.

That is different from saying that the “critical difference” was Congress’s findings, as you claimed.

You might not find the Court’s argument to be “principled,” and you are entitled to that view. But you are not entitled to your own facts. Your disagreement with the Court’s ruling does not authorize you to put words in the Court’s mouth that are the direct opposite of what the Court actually said.

Patrick Frey

Prof. Stone replied:

My point, which perhaps I didn’t make clear enough, is that apart from the congressional findings, there was no principled basis for the Court’s decision and the Court would not have reached this result. Although the Court said that it would not give “dispositive” weight to the congressional findings, it ultimately relied upon those findings to justify its conclusion. Put simply, the Court upheld a limitation of a fundamental constitutional right even though it admitted that the findings on which the restriction was based were erroneous. But it remains the case that, without the congressional findings, even these justices wouldn’t have reached this result.

And I replied:

Prof. Stone,

You claim that the majority would not have reached the result it did in the absence of the Congressional findings. I have already provided you a quotation from the opinion that directly contradicts your position. I challenge you to provide a quote from the opinion — any quote — to support your contention.

You can’t do it, because it’s not there.

Now, I’ll grant you this: sometimes courts are really doing something different from what they say they are doing. In such cases, it’s fair for commentators to opine on what they believe the court is really up to. But, in such cases, commentators have the obligation to make it crystal clear that they are offering their personal view of what the court is really up to, as opposed to what the court said it was doing.

You didn’t do that. You said that “in the majority’s view” the Congressional findings were the “critical difference.” This is just flatly wrong, and it’s about time you owned up to it.

Let me offer an analogy. Let’s say that I think the dissenters in Bush v. Gore were making a nakedly political decision. I take it that you would find it wholly improper for me to say:

In the dissenters’ view, the critical factor in the case was that Gore was a Democrat who advocated policies with which the dissenting justices agreed.

That might be what I personally believed the dissenting justices were thinking. But it’s not what they said. So it would be wholly improper for me to pretend that this was their view. And it doesn’t matter that, in my opinion, they offered no other “principled basis” for their dissent. That does not give me license to distort what they said.

This is not a simple matter of your not being clear. You just flatly got it wrong. I would like you to admit it.

Patrick Frey

Prof. Stone replied, with a touch of irritation:

You still don’t get it. The Court (for what it’s worth) says that the findings are not “dispositive.” What it means by that is that they are not binding on the Court. But the Court clearly relied upon them, even though admitting that they are “uncertain” and not necessarily right. Courts do this all the time. You’re simply overriding the statement that the findings are not “dispositive.” To say that they’re not “dispositive” does not mean they’re not relevant and it does not mean that they are not critical to the result ultimately reached. I take it you’re not a lawyer.

That last line is the inspiration for the title of this post. I replied:

Prof. Stone,

In my last e-mail, I said:

I challenge you to provide a quote from the opinion — any quote — to support your contention.

I re-extend the invitation, which you declined in your last e-mail.

If there is some aspect of the opinion that I am just not getting, it should be child’s play for a law professor at one of the nation’s top law schools to show me that I’m wrong, with language from the opinion.

But I don’t think you can do that. I have read the majority opinion two or three times now. I see nothing there to support your contention that the Court placed any relevance whatsoever on the Congressional findings. The Court placed some weight on the evidence presented to Congress, as well as the evidence presented in the lower courts. But I found no indication in the opinion that the Congressional findings based on the evidence were in any way relevant to the Court’s decision. To the contrary, the Court explicitly disclaimed reliance on those findings.

I decline to answer your question about whether I am a lawyer. It’s not relevant to what we’re talking about. I will say this: if this were merely a battle of credentials, you would win, hands down. But this should be a discussion about the facts. And the facts are simple . . . namely, you are wrong when you say:

In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation.

Again, I have already offered language from the opinion that directly contradicts this assertion of yours. If you have a quote from the opinion to prove me wrong, I am eager to read it. But I don’t think such a quote exists.

Patrick Frey

Prof. Stone replied, with an e-mail that sounded like the end of the discussion:

I’ve explained it to you. Beyond that, you’re on your own. You have every right to disagree.

The next two e-mails are where Prof. Stone concedes that the findings we have been discussing are not the ones relating to the rationale for the law. Here’s how that concession came about.

Despite his refusal to give me a quote to back up his opinion, I went back to the opinion yet again, and tried to see what he could possibly mean — bending over backwards to give him the benefit of the doubt. I noted that the Court did indeed give some weight to some Congressional findings — just not the ones that Prof. Stone had complained about. The Court did find relevant some findings regarding the rationale for the law, even though it rejected the findings the regarding the relative safety of the D&E and intact D&E procedures. Perhaps the findings on the rationale were the findings he claimed the Court had relied on? That would not make any sense, since it was the findings regarding the lack of a medical necessity for partial-birth abortion whose inaccuracy had so disturbed the professor. Still, giving him the benefit of the doubt, I wrote this:

Prof. Stone,

Your e-mail sounds like a sign-off, but let me attempt to re-open the discussion. When you refer to Congress’s findings, I have been interpreting that as the findings with respect to the safety of D&E versus intact D&E. Those are the findings that you ridicule the Court for accepting.

I will grant you, however, that the Court did rely on Congressional findings with respect to the purpose for which the Act was passed — namely, that the procedure is brutal and confuses the ethical duties of physicians.

When you say that the findings were “the critical difference” to the Court’s decision, are these the findings to which you refer?

Because if they are, then you are correct to say that the Court found them relevant — but you are then incorrect to assail the Court for accepting factually false findings. The Court clearly indicated that it gave weight to Congress’s rationale for passing the law, but no weight to the factually flawed findings regarding the relative safety of the two procedures. It is nothing more than sleight of hand to mush the two together.

Prof. Stone replied graciously:

I appreciate your effort to understand my point. As I read Kennedy’s opinion, he did not disregard the congressional findings about the value of intact D & E to protect the health of the woman or about the safety of intact D & E relative to alternative procedures. He discounted those findings only to the extent of saying that they were not “dispositive.” But he took them into account in concluding that these matters were “uncertain.” And that uncertainty was critical to the Court’s outcome. Remember, the outcome was to uphold the law in the absence of a statutory exception for the health of the woman. It was the absence of that exception that was the issue in the case.

The other legislative findings that you cite seem largely irrelevant to that question, and although Kennedy fusses over them I don’t see how they relate in any meaningful way to the question actually before the Court — whether a statutory health exception was constitutionally required (as the Court has always held) or whether an “as applied” health exception would suffice. That question has nothing to do with the “brutality” of the procedure or the standing of the medical profession. Remember, Kennedy conceded that the law couldn’t constitutionally be applied in such a way as to endanger the health of the woman. The question was whether the statute had to have that exception. On the question, the critical factors have to be the relatively safety of the procedure and the extent to which the unavailabililty of the procedure might endanger the health of women. Only if the procedure is relatively unsafe and largely unnecessary could the Court conclude, in light of the precedents, that an “as applied” exception would suffice. And that, of course, brings us back to the congressional findings, without which the decision to uphold the law without a statutory exception would have been incoherent.

I will grant you this, though. If I were writing my post now, after our exchange, I would try be more clear about this. You’ve helped me see that my criticism of the Court on this point requires more explanation. But the point remains: the Court relied upon, and needed to rely upon, specific congressional findings that the Court should have dismissed as unfoundned (not merely as “not dispositive”). (On the other hand, I concede that the Court did not rely upon the finding about medical schools teaching the procedure. But the existence of that congressional finding is nonetheless relevant because it underscores just how irresponsible and politically-motivated the congressional findings actually were.)

Here’s the bottom line: If the Court had behaved in a principled manner, it would either have invalidated the law on the basis of its earlier decision because of the absence of a statutory health exception or it would expressly have overruled its earlier decision and faced the question head-on. Instead, it wrote a disingenuous opinion that fudged and tried to have it both ways. (If you knew me, by the way, you’d know that I would criticize such an opinion regardless of whether I was sympathetic or not with the result.)

For me, though, the really interesting and important point of the case is not about the findings, which tell us more about Congress than the Court, but about the religious makeup of the five justices in the majority, which I find fascinating. That was the real point of my post. It was that, rather than this incidental squabble over the findings, that I thought would draw the most ire. It’s that facet of the case that interests me intellectually — the role of religion in law, the relationship between religion and morality, the extent to which government should impose laws on nonbelievers when the laws are based on the religious views of believers, and how the Court should deal with those questions. In fact, I’m writing a book on that subject at the moment. So, I thought I’d try out a strong statement of my thesis in this post. It’s ironic that you’ve wanted to fuss about my comments about the findings, which I personally didn’t regard as particularly important or interesting.

Anyway, I value a good argument. It can be illuminating. Thanks.


Note that he finally concedes that the Court did not rely on the finding about whether certain schools are teaching the partial-birth abortion procedure. Interestingly, however, this is the only finding that he cited in his post — and he cited it as evidence of the Court’s sloppiness for accepting that flawed finding.

I responded:

Prof. Stone,

Thank you for confirming that our discussion has been about the Congressional findings regarding the relative safety of the procedures — and not the findings relating to the rationale for the law, such as the findings regarding the procedure’s brutality, or regarding medical ethics. That is an assumption I had made throughout, based on your post, but I am relieved to see that my assumption was correct.

With that assumption in mind, I think you and I have a fundamental disagreement as to whether Justice Kennedy took into account the Congressional findings — as opposed to the evidence supporting those findings.

I contend that the opinion is quite clear in relying upon the evidence presented both to Congress and the lower courts. It is equally quite clear in rejecting the findings based on that evidence as dispositive. Further, I cannot find (and, despite my challenge, you have not cited) any language in the opinion to support the notion that the Court relied on the findings as opposed to the evidence. When the Court discusses medical disagreement over the safety of the procedures, it cites the evidence, and not the Congressional findings.

If you were to read the opinion again with this contention of mine in mind, I think you would find that I’m right.

The Court’s stance is hardly unusual. As you know, appellate courts often make rulings based upon whether a contention is supported by the evidence, even if a lower court’s findings made from the evidence are erroneous.

Why does this matter? Why did I choose to focus on this weakness in your post, rather than on your argument about the Justices’ Catholicism?

Simple: because your mistake creates a strawman, making it easier for you to attack the opinion. If you a) conclude without textual support that the Court relied on the findings, as opposed to the evidence; b) neglect to tell readers that the Court explicitly disclaimed reliance on the findings; c) neglect to tell readers that the Court recognized flaws in the factual findings; you may then d) triumphantly reveal those same flaws in the factual findings, as evidence of the Court’s neglect of the facts.

It is then easy to ask why the Court was so neglectful of the facts — and a short step to concluding that the justices in the majority did so because of their religion.

But something different happens if you acknowledge that a) the Court rejected the findings as dispositive; b) the Court gave no indication that it was relying on the findings, as opposed to the evidence; c) the Court itself noted the flaws in the findings; and that d) the Court based its findings on the evidence (not the findings) presented to Congress and the lower courts. Now, in order to attack the decision, you must either attack the evidence relied on by the Court, and/or show why the Court’s conclusions based upon that evidence are wanting.

That’s a tougher argument. I’m not saying it couldn’t be made, but it’s tougher.

By asserting something that is not true, namely, that the Court relied upon the Congressional findings (as opposed to the evidence presented to Congress and the lower courts), you created a strawman and took the easy way out.

That’s why this matters.

Finally, even if you could show a quote from the opinion to support your contention that the findings (as opposed to the evidence) was relevant (and I don’t think you can), I still fail to see how it could be “the critical difference” when the Court itself said it wasn’t dispositive. You have, in your e-mails, changed your contention to arguing that the evidence was “critical” — but that is different from what you said in your post, which was that it was “the critical difference.” Isn’t “the critical difference” the same thing as a factor that receives “dispositive weight”?

Thanks for your response.

Patrick Frey

And there the matter stands. He has not responded, and I don’t think he will.

The next time you find yourself overawed by an opinion, simply because it has been expressed by a law professor, I want you to remember this exchange. If you read the Gonzales opinion, it will be that much more meaningful to you. In my view, this exchange is proof that even a man who used to be the Dean of the University of Chicago Law School can get basic facts wrong — especially when he is blinded by his political views.

77 Responses to ““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”

  1. I knew you weren’t a lawyer !!! Shrewd answer.

    Steve Smith (8fadae)

  2. Thank you for your work on clarity and intellectual honesty.

    I know by training and experience lawyers work in an adversarial system, and maybe can banter in such a way that others of us would be inclined to “dig in our heals”, rather than concede a point.

    In the spirit of being in debate, but not contentious (hopefully), I agree that
    “— the role of religion in law, the relationship between religion and morality,” is an important issue. Even the phrase, “and the extent to which government should impose laws on nonbelievers when the laws are based on the religious views of believers, and how the Court should deal with those questions” has a degree of merit (IMHO). This is the issue which lead to the appeal in the 70’s to “not become a single issue voter” and the practice, ala Jimmy Carter, to offer the rationale, “I personally don’t agree with abortion, but I don’t think it’s right to ‘impose my religious views on others'”.

    1) Since our laws are meant to be made by Congress and representative “of the people”, it should not be an issue of a few people in robes imposing their (religious) views on others, but the consensus of a majority of the people (in the context of the Constitution, in being an American).
    2) Professor Stone seems to define “religion” in the way it apparently has been defined by the courts, which I (and many others) find too narrow. In fact, the court prefers simply one aspect of the definition in Webster’s dictionary. “Religion” can be defined narrowly as an organized system of specific (and explicit) beliefs regarding “ultimate reality”, whether that includes the idea of an individual god or not. This still presumes on the assumption that to be a “religion” it needs to “have a name” and “consider itself one”. I don’t think many would claim Buddhism is not a religion, but it certainly does not revolve around a specific deity or dieties. In the broader sense, if religion has to do with the belief in “ultimate realities”, then any belief in these areas is “religious”.
    3) The question then is not whether religious views have a role in public discourse and decision making, but how should it function in a pluralistic society. The “rules” of our country state that we are free to practice our religious beliefs and holders of office need pass no religious tests. So, there should be no policy that includes or excludes Catholics, or Jews, or atheists, or Protestant Christians, or Muslims, etc., all in their many variations from elected position or judicial appointment. (Unless, of course, part of the particular religious view is incompatible with the foundational views of our society). Such freedom of conscience is consistent with a “Judeo-Christian” worldview which believes that each human is a moral being with decision making capabilities and responsibilities.
    4) If one’s moral behavior is not based on one’s worldview, or “religion”, what else is it based on? (Or as is often the fact, one’s stated worldview becomes consistent with whatever behavior the person wants to “be approved”.) I believe it is wrong to murder because God said so, not just because if we allowed murder maybe I would get killed before getting the upper hand myself.
    (Tongue in check warning!!-sort of) I’ll tell you why so many lawyers and politicians want to keep religion and the 10 Commandments out of public debate. Between the commandments to not bear false witness (perjury, libel, slander, and “just plain dishonesty”), not commitment adultery (divorces), and to not covet (litigation), many lawyers would have nothing to do, and those who did have a job would find it so boring (all those people telling the truth, bah, humbug!)

    MD in Philly (3d3f72)

  3. But… but… I wanted you to say.. “Excuuuuuse me while I whip this out…” and flign your juris doctorate in his general direction, Patrick.


    Cassandra (57b9d6)

  4. Put simply, the Court upheld a limitation of a fundamental constitutional right

    WTF? That suggests, in my mind, that it is expressly stated. For it to be fundamental right, it would have to have been in there in ink, right?

    Where the hell is it? I am looking at a copy online, and I’m just not seeing it… More to the point, I’m not seeing this whole “constitutional right to privacy” thing either. Maybe I’m using the wrong search words…

    Scott Jacobs (feb2f7)

  5. Pat, you fight like a dog for scraps, and scraps are all you got.
    But at least he dragged this blog into a discussion of the decision itself, which otherwise would not have happened.

    It’s a lousy decision, based on assumptions haphazarly covered up by sloppy logic. How could this not be evident to the men who made it? That’s the question that was just raised. It’s the only one worth talking about.
    I’m used to reading left wing pedants, but you have the same mannerisms.

    AF (d700ef)

  6. So you find the method used for partial-birth abortions completely acceptable? You realize that it is a matter of mere moments in some cases for that child to be fully birthed and “viable”, yes?

    There’s always been a fascit of you that utterly disgusted me, and I do believe I’ve finally hit upon it.

    Scott Jacobs (feb2f7)

  7. Steve Smith,

    You do know that I am a lawyer . . . right?

    Patterico (5b0b7f)

  8. Commit all the abortions and euthinasias you want but dont you ever think about chopping down that tree its got a SPOTTED OWLS nest in it

    krazy kagu (d982eb)

  9. Ah another professor (Stone) swinging in the winds!!

    Sue (661707)

  10. AF,

    I have discussed the partial-birth abortion issue here countless times and I would be discussing it with or without Geoffrey Stone.

    As I have already explained, Stone’s error is important because it undercuts his thesis. If the decision can’t easily be ridiculed on the ground that the Court relied on incorrect findings, it’s a bigger stretch to say the Justices did what they did because of religion.

    As I will outline more completely in a future post, the argument is ludicrous anyway. Scalia and Thomas (and, I suspect, Alito and Roberts) don’t think abortion is a right in the Constitution. It’s a principled view having nothing to do with religion. But there aren’t five votes for it. So they took what they could get here.

    As for Kennedy, if Catholicism is driving his decisions, how do you explain Casey, Lawrence, and a host of other decisions?

    Patterico (3cfd43)

  11. Accepting the findings or not accepting the findings in this case is a distinction without a difference. The Court made it so easy for a law like this to pass constitutional muster that it simply said “the findings can be wrong – we’ll uphold your law anyway.” Is that the same as “accepting” these clearly wrong findings? Who cares? If the court did not “accept” the findings, it’s only because the clearly erroneous findings were more than enough for the law to be upheld, so even clearly wrong findings were unnecessary.

    The professor right that the real issue was whether the law had to allow exceptions to protect mothers’ health. Congress bent over backwards to show the law wasn’t dangerous to mothers, so no exception was necessary. Then the Court (rightly) said “we don’t believe you.” But then it said “you don’t need to show us this law isn’t dangerous to mothers, anyway.”

    The Professor’s comment about accepting the findings being “critical” to the court’s decision was wrong semantically only because nothing in the record from Congress was “critical” to this decision. The Court just decided to let Congress have its way; it never got to the point of evaluating whether the law was actually dangerous to mothers.

    This quibbling about whether the findings were “accepted” or simply ignored is a waste of time, because reliable findings aren’t necessary anymore. The Court said Congress can pass laws it can’t prove decisively are safe. As long as they can get somebody to say that the laws are safe, even somebody completely unreliable, medical testimony to the contrary will be ignored by the Court for purposes of a facial challenge.

    In other words, presenting evidence it’s possible that someone will be hurt isn’t enough to strike the law anymore. Proving congress is lying when it says that the law won’t hurt mothers isn’t enough. Only those who are actually hurt by the law have standing to challenge it.

    Of course, in the case of a singular medical proceedure, getting actually hurt pretty much ends the purposes of challenging the law anyway, since once you’ve been hurt, you can’t sue the legislature for damages, and your own challenge is moot.

    Phil (427875)

  12. Look, this guy is a revolutionary Jew par excellence, constantly moving the goal posts to serve the parochial goals of the Jews. These people railed against nepotism and for civil rights and for religious freedom, but as soon as they’re in power they write books defending nepotism, railing against race mixing with Gentiles, and supporting the ethno-religious state of Israel.

    They’re all about Jewish power and one of the prerequisites of Jewish power is creating a mixed up multicultural society afraid to impose standards. Thus, Jews, in charge of the major cultural organs of the US–media, universities, law, and politics–aim to make us a confused bunch, devoid of values and self-confidence, hamstrung by weasel worded cultural and legal theorie.

    They’re obsessed with the Holocaust because they think it shows the evil of the west. They never take rsponsibility for manifold Jewish crimes in the Soviet Union, in Israel today, or in America where Jews dominate the child pornography business among other organized crime syndicates.

    Read this: The Revolutionary Jew.

    Catholic U of C Alumnus (669a97)

  13. The sad thing about the whole partial birth abortion thing is that it should have a health exemption but the health exemption was used to allow unlimited abortion on demand. When I was a surgery resident in 1969, I did abortions. It was then legal in California and the reason was a health exemption that had been decided by the California Supreme Court. The result was a routine psych evaluation that always decided the mother needed the abortion to preserve her mental health. Now, the health exemption is the reason why Tiller does 5,000 D&X procedures every five years (although there may be more).

    The last week my students and I saw a young woman who had a D&X for real health issues. She has Huntington’s disease that began when she was a teenager. She is severely affected now and had a pregnancy interrupted last year because her older two children are in foster care and the fetus had a genetic test showing it had Huntington’s disease. Those rare cases have been shunted aside by the abortion mills that use the exemption that should be reserved for real cases.

    I think there is a saying “Hard cases make bad law.”

    Mike K (86bddb)

  14. I think you should have responded to the “I take it you’re not a lawyer” shot with “I take it you’re not one, either.”

    David (047972)

  15. Catholic U of C Alumnus,


    Leviticus (1daf74)

  16. Levi,

    That was exactly my response.

    lc (a21bb2)

  17. Catholic U of C Alumnus

    You’re very misguided…

    H2U (81b7bd)

  18. I’m only going to focus on one aspect of this blatant anti-semite’s post:

    or in America where Jews dominate the child pornography business among other organized crime syndicates.

    Those crafty jews…

    You dimwit… You really don’t get it, do ya? Stone being jewish (or not, I dunno what religion he is) doesn’t matter a whit.

    The fact that he has based the larger part of his disagreement (if not the entire thing) on a false premis IS.

    His religion makes him neither less nor more wrong.

    He is just wrong.

    Scott Jacobs (feb2f7)

  19. Did somebody say JOOOOOOOOOOOOOOOO?

    Cynthia McKinney (68fd1f)

  20. You were right: he overstated himself. When pushed, he retrenched.

    Does that automatically invalidate his entire argument? Obviously not, and pretending it does is just a rhetorical trick.

    After all, you overstated yourself too. By claiming “no dispositive weight” equals “no weight”, you were being dishonest in exactly the same way he was.

    In the end, I think he won the argument. You say the court only weighed the evidence, not the findings; in other words, that it implicitly made its own, more cautious findings in the area of relative safety. His point is that relative safety is a key point in this decision, and the decision as is rests on some underpinning in this regard. Whether that underpinning is the “findings” or the “evidence” is a material mistake of his, but not one that is crucial to his argument.

    Others might legitimately disagree who won the argument. But certainly, your crowing about “I’m smart, he’s stupid” is not justified.

    Chema Q (f6103a)

  21. There is something distinctly Jewish about Stone and the rest of the law school and the broader university’s professors. They have a Jewish mentality. They reject anything that does not fit a narrow, materialist definition of rationality. They have a penchant for destructive critique, utopian idealism, and outright hostility to any notion of morality. They, above all else, seethe with resentment against the broader Christian and Gentile societies of which they are a part.

    Jews spend a ton of time thinking about “what’s good for the Jews,” how their Jewishness makes them special, what’s wrong with the rest of the society etc. Having loosened themselves from the moral and religious tradition of Judaism, this just amounts to ethnic chauvinism, yet it masquerades as universalism and a kind of liberalism. The Jews tell us to worry what percentage of this or that institution lacks blacks, women, and minorities, but recoil in horror if we notice that the U of C law school for instance is overrun with Jews.

    More than half of the bloggers at the U of C website are Jews. Look at their distinctly Jewish names: Lichtman, Stone, Sunstein. The only one missing is Karl Marx himself!

    Jews have been a major part of the leftist bent on the Court–Brandeis, Franfurter, Cardozo, and now Ginsberg. The secular Jew is extremely dangerous, and his distinctly Jewish traits and Jewish identity should be fair game for anyone wanting our society to avoid the fate of a Tsarist Russia or Weimar Germany: bloodbath masquerading as purifying violence or decadence from which extremists of all kinds will draw strength.

    Catholic U of C Alumnus (669a97)

  22. Wow…

    Just… Wow…

    Pat, hows about a ban here, eh?

    This moron is just to horrible to behold in his wrongness.

    Scott Jacobs (feb2f7)

  23. No, Scott, I think it’s good to know what people are really thinking under the safety of anonymity.

    lc (a21bb2)

  24. I take it Professor Stone doesn’t think Jan Crawford Greenburg is a lawyer either.

    DRJ (50237c)

  25. “The last week my students and I saw a young woman who had a D&X for real health issues.”

    Mike K., if you know, can you perhaps mention some cases where the physical health of the mother would be possibly severely compromised were the specific option of PBA not available?

    I’m having trouble imagining them and finding them – which in no way means that they don’t exist. I just don’t know what they are.

    [I signed those “threat to the mental health of the mother” papers in Calif., too, in hallways, without doing an exam or billing for signing. Mine was the second M.D. signature necessary. Basically, if the mother said her mental health was going to be threatened, it was.]

    J. Peden (e5fb19)

  26. Levi, Lc:

    Guess that explains how Hitler could have been raised Catholic and still done what he did.

    dubya (753723)

  27. i.e, nuts come in all religious and secular persuations.

    dubya (753723)

  28. Jews spend a ton of time thinking about “what’s good for the Jews,” how their Jewishness makes them special, what’s wrong with the rest of the society etc.

    Holy moley…
    Do you really believe this to be true?

    Have you *ever* heard of the concept known as Tikun Olam? Or Tzedakah? For heavens sake, your stereotyping is absurd and very offensive. It sounds to me like you’ve never befriended a Jew in your entire life nor made any effort to understand the culture.

    Instead you recreate a lovely shibboleth that in the past has led to wholesale slaughter of a religious/ethnic group. Awesome. I was especially fond of that Karl Marx quip. Because all Jews are closet communists…


    H2U (81b7bd)

  29. Put simply, the Court upheld a limitation of a fundamental constitutional right

    A right unlike those found in the 1st, 2nd, 4th, 5th, 6th, 7th & 8h amendments which have been severely limited from time to time.

    Can anyone name a right that is held higher than the abortion “right”? OK, the right not to have troops quartered in your house in peacetime, but besides that. The right against self-incrimination? People have been fired from government jobs for exercising it, so it’s not all that absolute.

    But abortion? If it were guns, we’d be talking about the right to have personal missiles.

    Kevin Murphy (805c5b)

  30. Can anyone name a right that is held higher than the abortion “right”?

    How about “core p*rnographic speech”?

    Attila (Pillage Idiot) (68fd1f)

  31. Catholic U of C Alumnus,

    Right on brother! That’s exactly what I was thinking too!

    But you gotta be careful, because there are a lot of lurking Jews on this site.

    Anyway, I just want you to know that


    David Duke (575af2)

  32. Excellent. Now that I know of this Catholic U of C Alumnus, he shall be taken care of most swiftly.

    Soon, C.U.C.A., me and my fellow cabal of bankers shall have you ruined. Your credit score will be mine!


    Abraham Levi Goldfarb (575af2)

  33. Patterico, your Zionist collaboration check will have a nice sized bonus this month.

    Abraham Levi Goldfarb (575af2)

  34. Your website, your call, Mr. Fry — but I think it’s better, all in all, to have these feebs be prancing about in public for decent folks to point at and jeer . . . as long as they don’t prance too often.

    At least, that’s what the official talking points from ZOG said I should say. And I’m not supposed to mention that Catholic U of C Alumnus should check that lump on his left testicle, because —


    Joel Rosenberg (677e59)

  35. They are crafty, those Jews…

    Sturpenfuher Von Fragen (575af2)

  36. “The Jew is using the black as muscle against you. And you are left there helpless. Well, what are you going to do about it, whitey? Just sit there?”

    Sturpenfuher Von Fragen (575af2)

  37. I’ll tell you another secret. The Jews control all the synagogues, too!

    Green Giant (46b81f)

  38. Since no one else went there…

    “a fundamental constitutional right”

    That’s one pulled out of your fundament, right?

    And as far as the “I take it you’re not a lawyer” bit goes, I think the better reply (well, actually, I really like it that you resisted the old argument from authority line….) would have been:

    “I take it you’re a law professor, not a lawyer.”

    Dan S (5c9ba5)

  39. And on the topic of the Joooooooos…

    You do know they have a complete lock on the kosher food industry, right? They’re everywhere!

    Dan S (5c9ba5)

  40. Awwww… All these mean people picking on you, Catholic U of C Alum?

    Well, would you be mine? Could you be mine? Won’t you be…my neighbor?

    Hi there neighbor! I’m glad to see you again! It’s been a long time since I’ve seen you. But now we can catch up on old times.

    Do you remember the songs we were taught? Isn’t singing fun, favorite neighbor of mine? Yes it is! I have some fun video that I took of you at our last picnic!

    Hope you enjoy, neighbor!

    Remeber, in 30 years, you’ll remember that this was your absolute peak, and it was all downhill from here. So hold fast to those memories…


    Fred Rogers (575af2)

  41. My god, you’re right!

    And to whoever Abraham Levi Goldfarb, even if it’s Levi….

    Those were two of the funniest things I’ve read today…

    Scott Jacobs (feb2f7)

  42. I hate Nazis.
    Especially Illinois Nazis.

    Elwood (c02c31)

  43. Eh… I dont’ hate Illinois Nazis any more or less than I hate other sorts of Nazis…

    Though I admit the annoy me more…

    Scott Jacobs (feb2f7)

  44. re: Illinois Nazis

    Mr. Jacobs – you may wish to brush up on your Blues Brothers movie quotes

    carlitos (b38ae1)

  45. O.K. The health of the mother issue.

    There is little argument over what the procedure entails. The child is pulled, usually with forcepts, from the birth canal except for its head. Stopping there, the physician inserts surgical scissors into the base of the skull, opens them for the purpose of widening the hole, sticks in a tube hooked up to a pump and sucks the contents out. Either the insertion of the scissors or sucking the kid’s brain out kills it. D&E 101.

    For those who favor the health of the mother exception, would it be O.K. to complete the delivery and then perform the procedure outlined above? If not why not? Talking late term “partial birth” abortion only here.

    Ms. Judged (becd1d)

  46. DAMNIT! I always screw up on those!

    Son of a…

    Scott Jacobs (feb2f7)

  47. I think Patterico’s response to Prof. Stone’s snobby “I take it you’re not a lawyer” comment was perfect. I might have succumbed to my baser instincts and replied “I’m not a University of Chicago lawyer.”

    DRJ (8b9d41)

  48. I imagine Professor Stone’s awakening from his intellectually lazy myopia will no doubt inspire him to think about the progressive groupthink he has become.

    syn (7faf4d)

  49. This is what I wrote in response to that rube (with props to your other readers for providing me with the “privacy clause” material):

    Robert O'Brien (79fb89)

  50. Whoops! I forgot the rest:

    1. The justices are bound by the Constitution, not stare decisis.

    2. “Health exceptions” are weasel language. An exception for the woman’s life is sufficient.

    3. Pointing out that the justices in the majority are all Catholics is ad hominem argumentation, not an instance of profound insight.

    Moreover, Catholic arguments rest on the idea that ensoulment occurs at conception; most people of breeding extend personhood to near-term foeti.

    In fine, your argument is absolutely anemic, just as Jill Filipovic’s was.

    Robert O'Brien (79fb89)

  51. Catholic U of C Alum,

    What are you looking at sugar t*ts

    Mel Gibson (3dd3fe)

  52. “2. “Health exceptions” are weasel language. An exception for the woman’s life is sufficient.”
    You’re a disgusting grotesque creature.

    My name is Coreen Costello. I live in Agoura, California, with my husband Jim and our son Chad and daughter Carlyn. Jim is a chiropractor and I love being a full-time, stay-at- home wife and mom. I am a registered Republican, and very conservative. I donþt believe in abortion. Because of my deeply held Christian beliefs, I knew that I would never have an abortion. In fact, I remember a few years ago when I was nursing my son Chad, I watched a speech Congressman Hyde gave on C-SPAN against abortion. It was so eloquent, it moved me to tears. I even participated in the Walk for Life sponsored by our local Christian radio station.

    Even now, I am amazed at the fact that I am here. I never would have believed that I would be testifying in Congress, supporting an abortion procedure.

    In March of last year, we were joyfully expecting the arrival of our third child. Then on March 24, almost a year ago to the day, when I was seven months pregnant, I began having premature contractions and my husband and I rushed to the hospital.

    During an ultrasound, the physician became very silent. Soon more physicians came in. Jim told me everything would be fine but I knew there was something very wrong. I went into the bathroom and sobbed. I begged God to let my baby be okay. I prayed like Iþve never prayed before in my life.

    My husband reassured me that we could deal with whatever was wrong. We had talked about raising a child with disabilities and there was never a question that we would take whatever God gave us.

    My doctor arrived at two in the morning. He held my hand, and informed me that they did not expect our baby to live. She was unable to absorb the amniotic fluid and it was puddling into my uterus. This poor precious child had a lethal neurological disorder and had been unable to move for almost two months. The movements I had been feeling over the last few months had been nothing more than bubbles and fluid. Her chest cavity was unable to rise and fall to stretch her lungs to prepare them for air. It was as if she had no lungs at all. Her vital organs were atrophying. Our darling little girl was going to die.


    AF (d700ef)

  53. Swing and a miss for AF…

    The phrase “An exception for the woman’s life is sufficient.” covers all cases in which, should the mother not have the abortion, she will die.

    The term “Health exceptions”, however, covers so many things that it might as well say “eh, whatever… do what you want”.

    At 7 months, a c-section could easily be performed and a viable child delivered into the world. Without having an MD – least of all a pre-natal specialty – I can’t state if THIS child would have survived, as I have no earthly idea what it’s underlying condition(s) were. However, 7 months is WELL inside the window for a viable birth.

    So why don’t you go bang your head into a wall, and try and jar back into place whatever the hell has disconnected in your quixotic little mind.

    And no, I don’t mean that word in the complimentary sense…

    Scott Jacobs (a1de9d)

  54. Patterico, your logic vis a vis Stone was impressive and merciless. I am struck at how sloppy some law professors can be, especially in matters involving the intersection of law and their own political views.

    Jeff Shapiro (318aeb)

  55. Scott, did you read the entire thing?
    Did you click on the link?

    AF (d700ef)

  56. When there is no legal reasoning in the precedent, whether Griswold or Roe, any subsequent opinion is going to be incoherent.

    nk (49aa3f)

  57. Oh, you mean you posted a link that wasn’t mind-numbingly liberally slanted? Really?

    Because if so, first I have to call the folks at Ripley’s…

    Scott Jacobs (a1de9d)

  58. Because, you see, you made what ranks among the dumbest things you’re said on here, and then provided a link… Usually when you do that it’s some drool-inducing liberal BS that is light on intelligence and heavy on the PC-dogma crap….

    Scott Jacobs (a1de9d)

  59. Patrick, you take academic credentials _way_ to seriously. And I think your expectations about intellectual integrity among academics is also way out of whack with reality. These are just people, and increasingly they are just political people — and you shouldn’t be “shocked, shocked” that dealing with them is a lot like dealing with the mix of folks in the general population — or within the class of those more strictly identified as politicians. Most professors in the humanities and non-medical professions are more like agenda pursuing journalists than they are like physicists and biochemists in the science departments. It’s really naive to presume otherwise — even if it’s a good strategy from the point of view of rhetoric and dialogue.

    PrestoPundit (a2369b)

  60. Scott: The story AF linked said the Doctor didn’t think a c-section would be good.

    There was nothing in it on the ‘why’ it wouldn’t be good, there was nothing in it that said the mother’s health would be put in danger if there was a c-section.

    The only thing that piece he linked did is give an account by a pro-life person that is convinced by doctors that the baby will suffer if it is born so they will kill it ‘painlessly’.

    Lord Nazh (d282eb)

  61. There is lots on the case referred to by AF in Senate pages S3470-S3475 during the debate of the 2003 law. I’ve been working on summarizing it, but don’t know when I’ll get it finished, in case anyone else wants to look at this.
    My conclusions (not mine alone) are:
    1) What Coreen Costello had performed is not what is generally referred to as a “PBA”.
    2) Some physicians on record disagree whether the specific procedure was the best and safest.
    3) It was not necessary to save the mothers life.
    4) It raises the question if PBA, mid-birth infanticide, or post-birth infanticide is appropriate in the case the child is disabled in any way.

    In addition, even educated patients, including physicians, may not understand some subtleties if not familiar with the procedure/technology/medicine. (For example, many people did not understand fertility clinics were freezing multiple embryos for storage and eventually discarding them.

    I’ve personally known one family and met another (years ago) who both were carrying babies with severe deformities/genetic abnormalities (Crie-de-chet). In both instances the women were (repeatedly) pressured to have an abortion where they didn’t want that, but rather let the child be born and experience what little time they could before the child died (if born alive).

    FWIW, Sen. Rick Santorum and his wife had a similar experience, so when he has argued against mid-birth infanticide it is an issue he is personally aquainted with.

    MD in Philly (3d3f72)

  62. Am I the only one disturbed that two lawyers – both of whom (I think) are paid by the taxpayers – wasted countless hours having an e-mail debate?

    I hate to toss out the trite “get a life,” but damn. What else might a prosecutor have done with this time? What else might a law professor have accomplished?


    PB (c65bfa)

  63. Do you think that taxpayers own all of my off-hours?

    You’re the kind of crank who would complain if I said I went for a bike ride on the weekend and enjoyed it. ON THE TAXPAYER DIME?!?!?11!?!

    Patterico (fe9057)

  64. “Am I the only one disturbed that two lawyers – both of whom (I think) are paid by the taxpayers – wasted countless hours having an e-mail debate?”


    Yes. I hope. Btw, are you Islamic?

    J. Peden (3e02dc)

  65. Haha, Patterico, nothing digs into you like comments about how you do your job, huh 🙂

    What are you doing up at 5 a.m. anyway? Do you have to get up that early to beat the miserable L.A. traffic?

    Phil (427875)

  66. “2) Some physicians on record disagree whether the specific procedure was the best and safest.”

    MD in Philly

    C-section would probably have required much less anesthesia time, no labor – including med. for induction – and allows direct visualization, which would possibly be a factor in a case such as Coleen Costello’s.

    Etc., on both sides. I’d like to see an objective comparison, at least, especially since I’ve come to distrust anything alleged by the Faux Liberal camp. You can almost take it to the bank that there will be something really wrong with what they claim.

    J. Peden (3e02dc)

  67. Phil,

    I get up at 6. The clock on this site appears to be off by an hour.

    Patterico (fde3ed)

  68. “The only [Jew] missing is Karl Marx himself”

    -Cartman, U of C Alumnus

    Karl Marx said “Religion is the opium of the people”.

    Judaism is a religion, not an ethnicity.

    You’re a fucking moron.

    Leviticus (Closet Jew) (68eff1)

  69. 67. Daylight Savings Time?

    Harry Arthur (b318a5)

  70. 62, Why Mr. PB, the two lawyers are teaching the rest of us who aren’t lawyers, something importatnt about the law.

    You do think an education is important, don’t you? Is it your opinion that the only place an education can take place is in a small room with many desks lined up nicely in rows and columns?

    Why is it “scary” that two adults in their free time bother to have an intelligent disagreement about the meaning of a Court decision?

    Harry Arthur (b318a5)

  71. Someone shuld tell him that Brian Leiter has the arrogant self-important law school twit niche filled.

    Charlie (Colorado) (0de294)

  72. University of Chicago is private, not public. Your point about P is still ridiculous.

    Attila (Pillage Idiot) (88e3e3)

  73. J. Peden…

    You can’t do a “partial Birth C-section abortion” because as soon as you perform the c-section, it’s a baby. Thus killing t would be murder…

    So the have mom partially squeeze it out and kill it. That’s perfectly fine to such gentele sorts such as AF…

    Scott Jacobs (a1de9d)

  74. Hah, good stuff. That U of C thing was a joke, right?

    David N. Scott (71e316)

  75. You know, I like to think that people like that aren’t real…

    I sadly suspect that he is, however…

    Scott Jacobs (a1de9d)

  76. I read the transcript of the testimony linked to in comment #52. Katherine was not viable, she would die of suffocation soon after birth. She was not aborted, it was a premature birth. The mother was in danger because of the excess amniotic fluid, which put pressure on her lungs, and could well have ruptured the uterus.

    It was not a typical case. It was most atypical in general details and in the particulars. It is neither an argument for or against abortion or any particular abortion technique. It is the story of a couple looking forward to bringing another child into the world, and their sorrow at losing that child.

    Most importantly it is an example of an old truth, you can’t be sure of what is going to happen. You can hope, you can plan for, but you can’t be sure of future events.

    Once again certain commentors have shown their inability and/or unwillingness to comprehend basic English. In some cases combined with a basic cowardice when it comes to following up on leads.

    Alan Kellogg (d7539a)

  77. Scalia and Thomas (and, I suspect, Alito and Roberts) don’t think abortion is a right in the Constitution. It’s a principled view having nothing to do with religion.

    Yes, but how do we know that their view of the Constitution is not influenced by their Catholic faith? Professor Stone should have posited that the appointment of two more “strongly devout” Catholics –Roberts and Alito—tipped the Court to limiting Roe. I doubt you could disprove such a thesis, but I don’t see how it can be easily proved, either.

    Your debate with Stone was entertaining, and I think you got him to concede the sloppiness of his original blog posting, on the findings part.

    Christophercooke (496d7d)

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