Fool You Once, Justice Ginsburg, Shame on Planned Parenthood. Fool You Twice…

by Casey Mattox:

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.

Ruth Bader GinsburgBut 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.

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.

Casey Mattox is senior counsel with Alliance Defending Freedom.



  1. “no Newsweek cover story, no MSNBC interview of a woman whose identity is hidden, no Journal of the American Medical Association article. Nothing.”

    Only Sith speak in absolutes!

    Oops… someone forgot to include the medical term instead of the political term. The AMA, whom you site has having no articles about partial birth abortion, specifically says that “partial birth abortion is not a medical term” and they instead refer to the specific procedures involved. This is found in a surprisingly easy Google search which leads me to believe that you didn’t do any research for this story outside of fringe anti-abortion circles where a feotus is a person but a mother is apparently not (circles which in turn get more moderate pro-lifers tarred and feathered).

    • Those abortions were purely elective, as one of them admitted in a radio interview:

      As for the “it’s not a medical term” objection, “open heart surgery” is not a medical term either. Nor is “gall bladder removal”. They still refer to specific, well-defined procedures (as does “partial-birth abortion”, which is explicitly spelled out in the ban itself).

      I have yet to meet anyone who thinks a fetus is a person but a mother is not. Even on fringe websites.

  2. Casey Mattox says:

    Oh, ObiWan, you make the point for me. The link you provide is to a pre-PBA Ban decision article claiming that it was necessary to save these women’s lives. (1) The PBA Ban does not prohibit abortions to save the life of the mother. (2) If it were true that the PBA Ban would impair women’s HEALTH, then one should expect that there would be stories about such women since the PBA Ban went into effect 7 years ago. But there are none.

    The AMA comment you cite is in the very document I cited. Yes, they refuse to use the short hand term “partial birth abortion” and then they say that it is “not medically indicated.” I didn’t say the AMA hadn’t commented on PBA. Indeed, I cite them. I say that there have been no AMA Journal article discussing any instances of women’s health being negatively impacted by the ban on PBAs.

    Thanks for reading.

  3. Oooh. BURN. Facts > opinion.

  4. Oh, I misunderstood your point. I thought you were saying that late term abortions were never medically advisable. Rather you are celebrating the fact that the 2006 decision didn’t forbid dilation and evacuations and only forbid intact dilation and extractions mitigating the damage it might have caused. Yes. I agree with you then. It is a good thing there exists an alternative with evidence to suggest that it is simply less risky and can almost always be used instead of the banned procedure. (Assuming we actually read the same AMA comment, I believe they said something like “rare exceptional circumstances”.) Of course, the AMA did disagree with the opinion of the court thinking it might set a bad precedent, but it seems to have not impacted their practice all that much.

    I also apologize for calling you a sith. Clearly you are not speaking in the absolute terms I inferred.

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