Thursday, April 19, 2007

Gonzales v. Carhart: An Alarming Nod to "Woman-Protective" Anti-Choice Advocates

As Justice Kennedy's opinion in Gonzales v. Carhart proceeds along its disingenuous path, a passage startling even in the context of this decision intrudes.  In a case supposedly addressing how abortions may be carried out, Kennedy suddenly waxes nostalgic about motherhood.  "Respect for human life finds its ultimate expression in the bond of love the mother has for her child," he croons.  Continuing on this bizarre tangent, he suggests that a woman's right to information is somehow at stake in the case.  He further suggests that the federal legislation will protect a woman from a painful decision that she will later regret and stresses that the woman must be informed of "the way in which the fetus will be killed."  Kennedy seems not to care that medical authority has solidly debunked the theory of a "post-abortion syndrome."  And he seems to forget for a moment that the case is not about information but about whether a certain method (per the Court's interpretation) may be banned altogether -- so that a woman will never have access to it, much less hear a description of how it will be performed.  It is almost as if this passage were meant instead to go in an opinion upholding a biased information requirement like the South Dakota law currently under consideration by the Eighth Circuit Court of Appeals.

Particularly noteworthy in this passage is Kennedy's reliance on a brief that contains the same testimonials (from the Justice Foundation) against abortion that were cited in the task force report that formed the basis of the recently defeated South Dakota ban on abortions. Reva Siegel (Yale) has written about the South Dakota task force report, and more generally about the anti-choice tactic, employed by defenders of the South Dakota ban, of portraying abortions as physically and emotionally harmful to women.  She argues that "An abortion ban reflecting and enforcing this understanding of sex roles violates constitutional guarantees of equal citizenship."  From her article, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions:

South Dakotans seized the spotlight in 2006 by enacting the most
restrictive abortion statute in the nation. In a direct challenge to Roe v.
Wade, the state outlawed abortion, except where it would prevent the
death of a pregnant woman. South Dakota’s abortion statute is constitutionally
significant in yet another respect. The ban gave prominent official
endorsement to a claim that has been quietly spreading for decades:
that abortion harms women. Asserting that abortions are coerced and
subject women to emotional and physical injuries, South Dakota prohibited
abortion to protect women, the unborn, and what the state calls “the
mother’s fundamental natural intrinsic right to a relationship with her

The article contains citations to the same briefs cited by Justice Kennedy.  See also Ruth Bader Ginsburg's powerful dissent in Gonzales v. Carhart:

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depressionand loss of esteem.” Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure.... This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited....Though today’s majority may regard women’s feelings on the matter as “self-evident,” this Court has repeatedly confirmed that “[t]he destiny of the woman must be shaped ... on her own conception of her spiritual imperatives and her place in society.”

For more on this issue, see posts by Jack Balkin (here) and Marty Lederman (here) at Balkinization.

Abortion, Abortion Bans, Anti-Choice Movement, Gonzales v. Carhart, Mandatory Delay/Biased Information Laws, Supreme Court | Permalink

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