Friday, May 23, 2008
Ronald Turner (U. of Houston Law Center) has posted Gonzales v. Carhart and the Court's 'Women's Regret' Rationale on SSRN. Here is the abstract:
In its 2007 decision in Gonzales v. Carhart the Supreme Court of the United States, by a 5-4 vote, rejected a facial challenge to the constitutionality of the Federal Partial-Birth Abortion Ban Act of 2003. This essay focuses on and questions one aspect of the Court's opinion: the statement that "some women come to regret their choice to abort the infant life they once created and sustained." In referring to (while acknowledging that there is no reliable data to measure) this phenomenon, the Court gave to certain abortion-rights opponents something they have sought for many years - express recognition of and reliance on a "women's regret" rationale in the Court's review of anti-abortion legislation. The Gonzales Court's articulation of the "women's regret" rationale, and the Court's acceptance and, indeed, endorsement of what it viewed as the "unexceptionable" and "self-evident" premise that some women regret their choice to have an abortion, are discussed and critiqued herein. In addition, the essay argues that the Court's recognition of the rationale is an important politico-legal victory for determined participants engaged in a decades-long campaign to place the "women's regret" rationale front and center in judicial and legislative arenas and debates.