In a recent interview with Jeffrey Rosen of The New Republic, Justice Ruth Bader Ginsburg had harsh words for a Texas law regulating the health and safety of abortion clinics that is almost certainly headed to her desk. This is remarkable enough. As Ed Whelan and Prof. Josh Blackman have noted, these are exactly the kind of remarks, prejudging a specific case, that should trigger a responsibility to recuse.
But propriety aside, the comments also evince an unmoved confidence in the abortion industry’s assertions, even when they are proven false. Turning her ire from the Texas legislature to the courts, she said, “The courts can’t be trusted either. Think of the Carhart decision…”. Yes, Justice Ginsburg, let’s.
On April 18, 2007, the Supreme Court announced its opinion in Gonzales v. Carhart, holding that the federal Partial-Birth Abortion Ban Act was facially constitutional. For more than seven years this law has been in effect and, generally speaking, partial birth abortions are illegal in the United States. States have also enacted a number of bans on partial birth abortion that remain in force. I say “generally speaking” because there was a big caveat that Justice Ginsburg seems to have forgotten.
Opponents of the ban, including Planned Parenthood and their allies, had argued strenuously that the law was unconstitutional because it lacked a “health” exception (it included a “life of the mother” exception). The Guttmacher Institute, Planned Parenthood’s de facto research arm, claimed that roughly 2,200 (probably a low estimate as Ramesh Ponnoru explains at the link) occurred per year prior to the ban – almost all of which the abortion industry contended were performed because they were necessary to protect a woman’s health.
Congress had omitted a “health” exception because of evidence that such an exception was not necessary in practice and that such an exception would merely be used to circumvent the law entirely, with abortionists claiming falsely that virtually every partial-birth abortion was necessary for “health” reasons. In Doe v. Bolton the court had created a health exemption so wide that it covered just about everything including depression.
Congress’s judgment was buttressed by a 1997 statement from the American Medical Association that partial-birth abortion was “not medically indicated.” Indeed, , the American College of Obstetricians and Gynecologists had also agreed that partial-birth abortion was virtually never (if ever) necessary before then White House policy advisor Kagan intervened to prevent what she called “a disaster” if ACOG took such a position, proposing alternative language for ACOG in its written testimony to Congress.
The Court called the abortionists’ bluff. It simply held that abortionists could bring future challenges to the law on behalf of actual women who needed a partial-birth abortion for true health reasons. Essentially, the Court said, “Prove it.” Justice Ginsburg’s dissenting opinion, citing the ACOG/Kagan language, specifically invited as-applied challenges on behalf of the alleged thousands of women who needed the partial-birth abortion procedure for health reasons:
“One may anticipate that such a preenforcement challenge will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.”
Hours after the decision, Planned Parenthood was still warning of its imminent negative impact on women’s health.
Over seven years later, Justice Ginsburg and the nation still wait. Despite claims that women’s health would be immediately harmed by the decision, no one has filed an as-applied challenge to the law alleging that a particular medical case requires partially delivering the baby before killing it. Nor have we seen even one documented story of a woman whose health was impacted by the unavailability of a partial-birth abortion. No as-applied challenge as invited by Justice Ginsburg, no Newsweek cover story, no MSNBC interview of a woman whose identity is hidden, no Journal of the American Medical Association article. Nothing.
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If we accept Guttmacher’s figure of approximately 2,200 partial-birth abortions per year, then the decision in Gonzales – upholding the law and lifting the injunction against it – has prevented over 15,000 partial-birth abortions from occurring. Yes, “[o]ne may anticipate” a challenge for these women – unless it was all a lie.
One would hope that Justice Ginsburg, having been persuaded by abortion zealots to ring the alarms in Carhart would become more mindful of believing the abortion industry’s press releases as verified fact. Unfortunately, it appears that with the Texas law that she is falling into the same trap.