The Non-radicalism of Daine Wood’s Abortion Jurisprudence, Part II

In comments, Ed Whelan urges us to consider his response to the Emily Bazelon article I linked earlier.      If there’s supposed to be some sort of devastating response to Bazelon there, though, I must confess that I can’t find it.   Most of his response concerns Wood’s rulings in N.O.W v. Scheidler, but he seems to do little but reiterate his normative disagreement with Bazelon and Wood (as opposed to identifying any empirical errors.)   It is true that Wood’s initial ruling was reversed by the Supreme Court, but (particularly in light if of the Supreme Court’s previous holding that RICO prosecutions do not require an economic motive) Bazelon’s argument that Wood’s interpretation of the relevant RICO statutes was perfectly plausible remains true.    Similarly, Whelan doesn’t address the key point of Bazelon’s defense of Wood’s opinion applying the Court’s 1996 ruling — that Wood’s opinion remanding the case to a lower court was a narrow and cautious one that was unlikely to result in a successful prosecution.   The Supreme Court then removed any ambiguity and the prosecutions did not proceed.   I don’t see any abuse of power on Wood’s part here.

Aside from this, the rest of Whelan’s argument basically amounts to “so’s your old man”:

Bazelon also attempts to defend Wood’s votes, in dissent, to strike down state laws banning partial-birth abortion and to strike down an informed-consent law that was in all material respects identical to the law upheld by the Supreme Court in Planned Parenthood v. Casey…*I’m certainly not going to defend the coherence or clarity of the “undue burden” standard that the Court concocted in Planned Parenthood v. Casey. But it’s precisely because Wood consistently deployed that standard, in dissent, to pro-abortion ends (and because of her NOW v. Scheidler hijinx) that I’m entirely justified in stating that I’m aware of no judge in the country who is more extreme than Wood on abortion. Nothing Bazelon says bears on that judgment, much less refutes it.

If we re-state the last point in a less tendentious manner — “Diane Wood is likely to resolve legal ambiguities in favor of reproductive rights” — Whelan’s argument is true but trivial, since the same can be said of any potential Democratic nominee. The argument has bite only if Whelan shows that Wood in some way distorted the law in order to achieve a pro-choice end, and he fails to do so. For obvious reasons, he doesn’t even attempt to defend the proposition that her position (shared by Richard Posner and later by a majority of the Supreme Court) that bans on D&X abortions were unconstitutional under Casey is an “extreme” position. With respect to her vote to strike down an informed consent law, while it’s true that Casey struck down a materially similar provision, as Bazelon points out it did so on the basis that such laws could not be “considered a substantial obstacle to obtaining an abortion.” In light of new evidence suggesting that such laws did present a substantial obstacle, it is not necessarily unfaithful to Casey to evaluate a similar legislative provision differently. As Wood argued in her dissent, the Court in Casey expressly limited its holding to to current facts, implying that evidence that waiting period requirements could constitute an undue burden if they obstructed women from obtaining abortions. I invite you to read her dissent in full — you won’t find anything there that is unreasonable or ignores a direct directive of the Supreme Court.

In other words, what we have here is a simple normative disagreement — Bazelon (like me) thinks that Wood’s (mainstream liberal) belief that a woman’s constitutional right to reproductive freedom should be taken seriously is salutary; Whelan disagrees. And from his own perspective he’s correct to oppose Wood’s nomination, but he completely fails to establish that any of Wood’s abortion jurisprudence is radical or indefensible.