Monday, January 7, 2008
I thought I would say a bit about this informative and insightful panel, a "hot topic" panel at this year's AALS meeting in New York, for those who were unable to attend. While it is of course not possible to summarize the entire session (and unfortunately I don't believe the AALS is offering podcasts of this year's sessions), I hope this will give a flavor of what the audience heard.
The topic was Gonzales v. Carhart (Carhart II), the Supreme Court's 2007 decision upholding the federal ban on so-called "partial-birth abortion," and the decision's implications for the future of reproductive justice. (For all this blog's posts on Carhart II, including my own and links to others' analyses of the opinion, click here.) The session was conducted in a roundtable format with Pamela Karlan (Stanford) posing questions to the five panelists, Jack Balkin (Yale), Michael Dorf (Columbia), Angela Harris (Boalt), Reva Siegel (Yale), and Kenji Yoshino (Yale).
Professor Karlan explained that the panel was not intended to present the full spectrum of views on the opinion, since all of the panelists are pro-choice, but rather was meant to allow the audience to hear, and participate in, a conversation in which the speakers have been engaged since the decision was issued last year. The panelists first discussed what was particularly noteworthy about the opinion. They explored the opinion's rhetoric, including its references to the fetus as an "unborn child" and to the pregnant woman as "mother." The speakers considered the implications of the Court's anachronistic, romantic idealization of pregnancy and motherhood. Audience members were particularly interested in the panelists' discussion of the role of regret in Kennedy's opinion, which asserted (confessedly against the weight of the evidence) that pregnant women will necessarily regret their abortions. Professor Siegel pointed out that this aspect of Kennedy's opinion reflects a new trend in anti-choice advocacy to portray abortion as psychologically harmful to women, rather than focusing on the fetus. She noted the importance of South Dakota, where this shift has been the source of great public debate and has resulted in legislative experiments testing the new approach.
Professor Balkin discussed another aspect of the Court's paternalistic approach, namely its confidence in posing as a medical expert in terms of what information pregnant women should know. He pointed out that this has worrisome implications for legal challenges to the new generation of so-called "informed consent laws," including Planned Parenthood v. Rounds, now pending in the 8th Circuit. It could encourage legislatures to pass laws requiring women to view ultrasounds of their fetuses and to receive a wide range of emotionally charged, misleading information unrelated to the medical aspects of abortion.
The speakers also addressed inconsistencies between aspects of this opinion and other decisions authored by Kennedy. Professor Dorf noted, for example, that Kennedy is not known for giving deference to Congress, and while he formally purported not to defer to Congress, he nevertheless did so informally. Professor Harris noted that, in Lawrence v. Texas, Kennedy declared that mere abhorrence was insufficient to justify criminal prohibition, and yet Carhart II seems based on nothing more than abhorrence.
The panel also considered the constitutional principles invoked in the decision. Professor Yoshino remarked on the related nature of liberty and equality, noting that while the principle of equality often operates to expand liberty, it can also be employed to contract it. That is what happened in Carhart II, where the principle of equality (viewed as protection of a targeted group) was turned against women. The opinion was cast as protective of women, but in fact stifles their liberty.