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Wednesday, April 18, 2007

PBA Ban Upheld

But I wish Anthony Kennedy's clerks would proofread better. Bad proofing produces ambiguity, and ambiguity leads to bad law. Take this sentence from the majority opinion:

"The Act excludes most D&Es in which the fetus is re-moved in pieces, not intact."

Now, both Kennedy's opinion and the Syllabus devoted quite a bit of time prior to this discussing how the law in question does not prohibit dismemberment Dilation and Evacuation abortions. But here, he indicates that it prohibits some of them. Why does it say that, you ask? Because of the lack of a comma after "D&Es." If there were a comma there, it would be saying that the Act excludes most D&Es because most D&Es involve the removal of the fetus in pieces. As it reads now, it says that the Act prohibits most of those D&Es that involve removing the fetus in pieces. The presence or absence of the comma changes whether or not the prepositional phrase "in which . . ." is a restrictive (without the comma, written meaning) or descriptive (with the comma, likely the intended meaning) -- and as we can see, thus changes the meaning of the entire sentence. Being a sentence buried deep within an opinion and making a point well established elsewhere, this is pretty harmless. But if we're letting this sort of mistake slip here, how sloppy are we going to be in situations where it really matters?

All that aside, it's an enormously welcome opinion. Kudos to the Court.



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