I alluded to it today in this comment at Popehat. As is too typical, the published appellate opinion doesn’t accurately reflect the actual facts and arguments at issue as I remember them. But beyond that, I was second chair, and the lawyer who called the shots and I didn’t see eye to eye on the arguments that ultimately made it into the briefs filed in the trial court. I wasn’t involved at all in the appeal. Granted, judging by the opinion the result probably would have been the same even if the arguments I wanted made were made. But I don’t talk much about this case because, given my role, I’m reluctant to accept or disclaim responsibility for it.
The heart of the case, as I saw it, was this: the abortion industry’s widely promulgated claim that abortion is “ten times safer than childbirth” is proved false and misleading by the generally accepted and established scientific fact that childbirth reduces the risk of breast cancer.
The victorious abortion industry also asked for attorney fees in a similar case I lost as lead counsel, but there the trial judge at least had the decency to deny their request, finding that “[t]he Plaintiff’s case, in the Court’s opinion, was obviously not a false and frivolous pleading. And they presented their case well and documented it as they deemed appropriate and so I find no frivolity there.” Indeed, the judge, in denying the Defendant abortion clinic’s motion for judgment as a matter of law at the close of the Plaintiff’s case in chief, had found that “the Plaintiff has submitted substantial evidence on each and every element necessary for its case.”
The heart of that case was this: the “substantial evidence” the trial judge acknowledged the Plaintiff had “documented” proved that the Defendant’s claim in its commercial brochures that “[t]here is no evidence” of a causal relationship between breast cancer and abortion was not just false and misleading but patently absurd.