Friday, April 20, 2007

This Wasn't the First Time "Abortion Doctor" Has Appeared in the United States Reports

In her dissenting opinion in Gonzales v. Carhart & Gonzales v. Planned Parenthood, Justice Ginsburg complains about the language used by Justice Kennedy in writing for the Court: “The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Slip. Op., at 19. Undoubtedly, for many medical professionals who take seriously their obligation to “do no harm,” any association with a medical procedure that partially births a child only to then rip open its skull and vacuum out its brains might seem “pejorative.” But I doubt this is her point. Is the majority being “pejorative” in describing these individuals as “abortion doctors”? Are they demonstrating their hostility to Roe and Casey by using this term? If so, they have lots of company.

No less a group of anti-Roe zealots than NARAL has used the pejorative term “abortion doctor” to describe those doctors who perform abortions. Here’s one example. Hat tip to Ed Whalen at the Bench Memos blog.

More importantly, however, the offending term has also appeared at least twice in the pages of the United States Reports prior to Wednesday’s opinion. In Hodgson v. Minnesota, 497 U.S. 417, 419 (1990), the syllabus of the Court’s opinion (addressing a portion written by Justice Stevens and joined by Justice O’Connor) states that the waiting period at issue provides the family time “to inquire into the competency of the abortion doctor.” In Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997), the syllabus of the Court’s opinion describes the respondents as “upstate New York abortion doctors and clinics and an organization dedicated to maintaining access to abortion services.” Of course, these are merely the syllabi of the Court’s opinions, not the opinions themselves, and as every Supreme Court opinion warns: “The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.” Since 1989 the Reporter of Decisions for the U.S. Supreme Court has been a man named Frank D. Wagner. Of course, this begs the critical questions: Why Does Mr. Wagner oppose women's rights? What role did Karl Rove play in Mr. Wagner's appointment as Reporter of Decisions? More seriously, one wonders whether Justice Ginsburg objected to Mr. Wagner’s use of the term “abortion doctor” in the Schenck syllabus. Did Justice Stevens, who joined Ginsburg's dissent in Gonzales, object to Mr. Wagner's use of the term "abortion doctor" in the syllabus of Justice Stevens' opinion in Hodgson?

Though Justice Kennedy did not use the term “abortionist,” that phrase has appeared in Supreme Court opinions before. If “abortion doctor” is pejorative because it is not the professional’s proper title, one would reasonably assume that the term “abortionist” must be at least as pejorative and likewise illustrate a “hostility to the right Roe and Casey secured.” So who was the right wing anti-abortion zealot who would have used such a term? In Roe v. Wade, 410 U.S. 113, 142 (1973), Justice Blackmun noted the AMA’s historical condemnation of “abortionists” performing abortions in violation of state criminal laws. The nation’s abortionists undoubtedly have forgiven the offense.