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“Advocacy-motivated claims of factual expertise” nothing new—see Roe v. Wade!

by | Sep 8, 2014


By Dave Andrusko

Roe_v_Wade_Bad_LawAs so often is the case, I ran across a piece written by the New York Times’ Adam Liptak while looking for something else. His story—“Seeking Facts, Justices Settle for What Briefs Tell Them”—is dated September 1.

In a nutshell, a forthcoming article in the Virginia Law Review argues that the Supreme Court Justices’ opinions “are increasingly studded with citations of facts they learned from amicus briefs.” This is a “perilous trend,” according to Prof. Allison Orr Larsen, who wrote the law review article. “The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise.”

In other words (supposedly) Justices are relying on arguments that are not only shoddy (“Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper,” Liptak opines) but come close to being made up out of whole cloth (“Recent opinions have cited ‘facts’ from amicus briefs that were backed up by blog posts, emails or nothing at all”).

Having not been able to read the article in advance, as Liptak was, I have no way of knowing how much, or how little, truth there is to this alleged trend. But for single-issue pro-lifers, we know that this (if true) is certain nothing new. Exhibit A is Roe v. Wade.

I’m not talking about Justice Harry Blackmun’s absurd opinion per se. Almost from the first months, even pro-choicers knew that Roe (and its companion decision Doe v. Bolton) were results in search of a rationale.

To take just one example, Brookings Institute Fellow Benjamin Wittes once wrote

“In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky. … [Roe] is a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply.”

I’m talking instead about one of the primary sources for Blackmun’s decision: a 1968 article published in the New York Law Forum written by New York Law school Professor Cyril Means. If ever there was advocacy-based work, this would qualify. It provided not only the foundation for the “new abortion history,” but also Blackmun’s mammoth misreading of the 19th Century “Physicians’ Crusade” against abortion.

Here is Prof. Justin Dyer brilliant explanation of “Fictional Abortion History,” which is found at National Review Online ’s webpage. (The essay was a kind of preview of Prof. Dyer’s book “Slavery, Abortion, and the Politics of Constitutional Meaning.”)

Means, as Dyer notes, was counsel for the National Association for the Repeal of Abortion Laws (NARAL), “who took the lead in drafting the new abortion history in the 1960s.”

The gist of the “new abortion history” is that abortion was “(1) a common-law liberty at the time of the American founding and (2) the primary purpose of anti-abortion laws in the 19th century was to protect women rather than the lives of unborn children.” Neither was true, as most objective observers know.

I thought I knew the background pretty well—the role Means’ arguments made (Blackmun cited his work a whopping seven times in Roe). What I didn’t know until I read Dyer is that the team pushing to overturn the abortion laws, lead by Sarah Weddington, likely also knew that Means was grinding out propaganda, not accurately recording history. Dyer writes

“The problem (as Weddington almost certainly knew) is that Means’s central claims were not true. In a memo circulated among Roe’s legal team in the summer of 1971, a Yale law student named David Tundermann warned that Means’s ‘conclusions sometimes strain credibility.’”

What really rocks you is what (as Dyer described it) “Tundermann tellingly concluded”:

“Where the important thing to do is to win the case no matter how, however, I suppose I agree with Means’s technique: begin with a scholarly attempt at historical research; if it doesn’t work out, fudge it as necessary; write a piece so long that others will read only your introduction and conclusion; then keep citing it until the courts begin picking it up. This preserves the guise of impartial scholarship while advancing the proper ideological goals.”

Dyer does a great job of demonstrating how this bogus narrative has been carefully nurtured by scholars who should have—or could have—known better.

Here is Dyer’s conclusion:

“The suggestion — still made today by credentialed historians, legal scholars, and respected journalists — that protecting the lives of the unborn was not the purpose of the abortion statutes overturned by the Supreme Court in 1973 is absurd. Although the role of history in abortion litigation has quietly faded to the background in the Court’s most recent abortion cases, it bears noting that the politically motivated abortion history crudely constructed by activists and academics in the 1960s and 1970s has enjoyed a remarkable shelf life. Forty years after Roe v. Wade, as we debate the legacy of the decision and consider the state of abortion politics, it is time to lay to rest this fraudulent history — a history that would be far less tragic if it did not involve matters of life and death.”

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Categories: Roe v. Wade