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.

[…]

…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.

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