How to Finesse a History of Controversial Abortion Rulings

By Dave Andrusko

As you know, pro-abortion Supreme Court Justice John Paul Stevens has announced that he is stepping down. The most pro-abortion President imaginable now has a second opportunity to appoint someone to the High Court.

What will be fascinating is how publications such as the Washington Post and the New York Times will simultaneously tell us (a) what else would you expect from a “pro-choice” President but a nominee who supports abortion and (b) that the nominee is really a raging moderate.

Take a story by Peter Slevin in the Washington Post today about U.S. Circuit Judge Diane P. Wood, said to be on the “shortlist of possible nominees” to replace Stevens. Right out of the box Slevin begins with Wood’s record on abortion as a possible “Achilles heel” (to quote one opponent).

How to put the best face on someone whom “Social conservatives criticize” for “drafting opinions opposing a ban on late-term abortion and an Indiana law that required a waiting period for women seeking abortions”? It’s ingenious.

1. Talk about how she can “challenge” “formidable thinkers admired by conservatives” on the 7th Circuit yet still be friends and “often eat lunch together.” Okay.

2. If you’re worried about all Ivy Leaguers on the Court, Wood “graduated from the University of Texas and its law school.” Plus she’s “studious and disciplined.” And she’s an expert on other stuff, like anti-trust law with an interest in international law. Etc., etc., etc.

3. If that weren’t enough vouching for her is a rabidly pro-abortion spokesman (Nan Aron, head of the Alliance for Justice) who tells Slevin that critics "are misconstruing some carefully reasoned opinions for their own political ends.” Not, of course, to be confused with her political ends of pumping up Wood. Besides, "No one expects a Democratic president to appoint a justice or a judge who is anti-abortion.”

4. But to get back to her dissent in a 2002 case involving Indiana’s informed consent law, what do we read? One sentence. Slevin quotes her as saying the majority, led by Judge Easterbrook, had misapplied Supreme Court precedent, "substituted its own factual assumptions for evidence" and "failed to focus on the women for whom the statute will create problems." In fact, in Planned Parenthood v. Casey, the Supreme Court had upheld a nearly identical law.

5. Fifth, and finally, Slevin goes on and on about a case that had gone on and on that involved pro-life demonstrators and a highly controversial application of a legal statute. What matters is not the legal minutiae, but the fact that after the case had reached the Supreme Court twice, the justices sent the case back to the 7th Circuit, indicating the case was closed. But an 8-1 ruling was not enough for Wood. She insisted there were some “final loose ends” that had been left unresolved and sent the case to the trial judge. “[B]ut the Supreme Court soon interceded and declared by an 8 to 0 vote that it had, indeed, intended to shut the door on the use of the RICO law,” Slevin wrote.