Tuesday, February 28, 2012
Robby's, Michael S's, and my own recent posts here since last evening bring back to mind a conversation with a dear progressive lawyer/mentor friend from some years' back. When I was clerking on the 10th Circuit for a judge whose chambers were in Lawrence, Kansas a bit over ten years ago, Nebraska, I believe, either enacted or came close to enacting a bill prohibiting what was often then called 'partial birth abortion.' The prospect of a challenge to that law and/or others like it under the Supreme Court's 1992 Casey standard was of course widely discussed. About that time I lunched one day with two lawyer friends, one of whom was the mentor mentioned above - I'll call him 'Friend.' As our conversation turned to these 'partial birth abortion' laws, Friend wondered aloud how best to challenge them, as he thought them likely to withstand constitutional scrutiny under Casey but was also being asked, I believe, to represent some prospective plaintiffs who were wont to challenge them. I was surprised by Friend's belief that these laws would easily stand under Casey. 'Isn't it clear,' I asked, 'that these laws will not withstand even rationality review, let alone the more regulation-permissive Casey standard?' 'How do you mean?,' he asked. 'Well,' I said, 'if foetal lives may legally be terminated while foetal feet are in the womb, what plausible reason can be given for prohibiting that termination when feet are out of the womb? Is there, in other words, any rational distinction what ever to be drawn between immediate 'pre-birth' and 'partial birth?' Friend looked at me with some surprise. 'But I thought you were one of those "respecters of life,"' he said. 'By Jove, I think you've got it,' I replied.
Incidentally, Rick's colleague John Nagle had earlier clerked for the same 10th Circuit judge to whom I allude here. While teaching a mini-course at their fine institution a couple of years ago, I joked to John that I knew his bare chest better than did any of his colleagues, probably, as our judge's chambers kitchen was bedecked on every wall with photos of John tossing his sweet children about in lakes and streams and other bodies of water. Let me take this occasion, then, to say I'm glad that they were born!