The Non-radicalism Of Diane Wood’s Abortion Jurisprudence
Emily Bazelon’s article on Diane Wood and abortion is essential reading. The idea that there is something radical in her giving a particular and plausible interpretation of the notoriously vague RICO statute or the notoriously vague “undue burden” standard of Casey is silly. To add, I’d like to focus on Ed Whelan’s assertion that Wood is “extreme” because she “voted to strike down state laws banning partial-birth abortion.” It should be noted that she was joined in this dissent by…that well-known Trotskyite Richard Posner. Conveniently, the nation’s preeminent conservative federal circuit court judge has explained in exhaustive detail why Wood was right:
Whipped up by activists who wanted to dramatize the ugliness of abortions and deter physicians from performing them, the public support for the laws was also based–as is implicit in Judge Manion’s defense of the laws– on sheer ignorance of the medical realities of late-term abortion. The uninformed thought the D & X procedure gratuitously cruel, akin to infanticide; they didn’t realize that the only difference between it and the methods of late-term abortion that are conceded all round to be constitutionally privileged is which way the fetus’s feet are pointing. Opposition to the bills that became these laws was at first muted not only by ignorance of the character of a late-term abortion but also by the fact that few women are likely to be affected by the laws. Circumstances conspired, as it were, to produce a set of laws that can fairly be described as irrational.
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…if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue. The statutes before us endanger pregnant women– and not only pregnant women who want to have an abortion.
As I’ve said before, the most obvious problem inherent in claiming that statutes banning D&X abortions are constitutional is that they bear no connection to any potentially legitimate state interest. Even the U.S. government, in defending its federal statute, conceded that such laws do not protect fetal life, and the direct impact on women’s health is negative. Kennedy had to defend these statutes with raw irrational sexism because there’s no other justification available. The idea that Diane Wood is a “radical” because she — along with what less than 10 years ago was a majority of the Supreme Court — voted to strike down such laws is absurd.
Ed Whelan is truly a hack’s hack.
The interested reader might care to learn that Judge Wood’s position on partial-birth abortion is a small part of my case against her. I responded to Emily Bazelon’s badly confused essay yesterday. See http://bench.nationalreview.com/post/?q=MjNhYTE3MTg3ZWVlM2Q3NThjMzg4NDY4ODQ4MDczNGU=
Oh, please. The only reason any of her positions are “Radical” is because the Republican party and press have moved the discourse so far to the right that anything short imperial foreign policy, laissez-faire markets, and christian dominion is considered “far left”.
And the first (and arguably the second) of those three items are now bipartisan conventional wisdom.
I responded to Emily Bazelon’s badly confused essay yesterday.
Lots of adjectives; not much reasoning on your part.
[...] The Non-radicalism Of Diane Wood’s Abortion Jurisprudence : Lawyers, Guns & Money [...]
All you say is true, Scott, but I’ve still never been a fan of the “this is no more gruesome than abortions we don’t ban” argument. There are, of course, two ways to resolve that apparent irrationality, and unfortunately that phrasing seems to lead one to the less-preferred (if you’re pro-choice) of those two.
The interesting thing about the Scheidler case (which, by the way, I agree with the Supreme Court on) is that the actual question was on the reach of the Hobbs Act, i.e., whether to read its (not RICO’s, sorry Scott) vague language in a more, or less, expansive manner. (RICO simply imports federal criminal statutes as predicate acts.) Stripped of its abortion-clinic-protest context, I think most people would find the “liberal” take to be reading it less expansively, on the grounds that people shouldn’t be locked up for crimes that aren’t clearly defined to be such. So Wood’s position was really what you would think of as the conservative/”law-and-order” one. The substantive outcome in that case was to favor NOW and the pro-choice side, but that completely obscures the actual issue before the Court.
You may find it “plausible” to argue that one can obtain property without obtaining anything — Stevens did, after all. I don’t, however, and neither did the other 8 members of the Court.
I preface this by saying that, like Glenn, I probably would have voted with the majority in this case and reversed Wood. But as Stevens pointed out, there was in fact extensive federal precedent for not limiting the relevant provision in the Hobbs Act as applying to cases where property was not directly obtained. Given this precedent, I don’t think that Wood’s construction of the statute is unreasonable.
Totally agree with Scott on this: It was not an unreasonable or irrational reading. The Second Circuit, I know, had come out the same way, probably others.
The Second Circuit’s Tropiano case (*), cited by Stevens, was something of a stretch, but even assuming its validity, it still doesn’t provide any support for Stevens position in Scheidler. In Tropiano, the defendant was attempting to “obtain” a rival company’s customers. Calling that “property” is (as I said) a stretch, but at least it’s something.
But in Scheidler, the defendants weren’t attempting to obtain anything at all. They weren’t a rival abortion clinic, or a real estate developer who wanted to buy the clinics’ land, tear down the clinics, and put up McMansions.
The problem, contra Stevens, is not that the property was “intangible,” but that they weren’t trying to obtain it, and no amount of verbal gymnastics to argue that “obtain” really means “to attain the regulation of the fate of” (huh?) can change that. And as you yourself noted, if this didn’t involve abortion, no way would liberals have ever tried to read a criminal statute so absurdly broadly in order to sweep in things which didn’t clearly fall under the ordinary definition of a word. Rule of lenity and all that. (A phrase that Stevens doesn’t even once mention, even to reject.)
( (*) Or were you talking about Arena? In which case, well, it uses the bizarre definition of “obtain” that Stevens swiped.)
Yes, I was referring to Arena. I do not agree with the panel’s interpretation there, not so much because of the definition of “obtain” but because of the history of the Hobbs Act. The Hobbs Act was drawn from NY criminal law, which actually recognizes two different crimes: Extortion, and “Coercion” — the latter being where one did not “obtain property” from the victim by force but rather sought to have that person do or refrain from doing some act. The fact that the Hobbs Act included only Extortion and not Coercion suggests that the latter (which is what was actually involved in Scheidler and Arena) is not included in the Hobbs Act. But I don’t find Woods’/Steven’s/Kearse’s definition of “obtain” to be irrational.
Just to be clear, my point about the Hobbs Act was not the same as yours. You are assuming that Woods gave a conservative interpretation of the criminal statute in order to further her pro-choice beliefs, but my point is one could just as easily assume — indeed, absent evidence to teh contrary should assume — that she gave a more conservative reading of the Hobbs Act because she genuinely believed that was the correct interpretation, and thus to use that as a means of calling her “too liberal” makes no sense. I guess neither of us knows what was in Woods’ heart, and absent that knowledge I choose to assume she executed her judicial duties in good faith.
Put more simply, you and Ed Whelan are simply begging the question.
Just to clarify, I am not signing on for Ed Whelan’s campaign against Wood. I am focusing solely on that ridiculous contortion of Wood’s (and Stevens’) in Scheidler which enabled her to claim that an action that manifestly did not obtain anything somehow constituted obtaining something.
Of course, in the abstract, there’s no way to tell whether a decision to interpret the word “extortion” broadly is motivated by an hyper-expansive view of government power wrt a law-and-order issue or a hyper-liberal approach towards an abortion issue. But we’re not really talking in the abstract, are we? We’re not acting in the absence of other information. If Wood were the sort of judge who did the former rather than the latter, she’d have been on Bush’s short list rather than Obama’s.
Really? What property did the abortion protesters obtain? (Answer that question with a straight face.)
[...] The Non-radicalism Of Diane Wood’s Abortion Jurisprudence : Lawyers, Guns & Money [...]
[...] their way onto the short list. Notably, none of them have made significant opinions on abortion (save Wood, who did little more than uphold current law) and none of them have a lot of opinions from which to draw controversy. Yet, even Sonia Sotomayor, [...]
[...] 7th Circuit panel that was ultimately reversed by the Supreme Court. (Joining her in the majority, once again, was noted Maoist Richard Posner, who completely shredded the Supreme Court’s ultimate [...]
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