The key to comprehending the Supreme Court's ruling today in Gonzales v. Carhart upholding the federal partial-birth abortion ban is a mastery not of constitutional law but of a literary type. Justice Anthony Kennedy's majority opinion is less about the scope of abortion regulation than an announcement of an astonishing new test: Hereinafter, on the morally and legally thorny question of abortion, the proposed rule should be weighed against the gauzy sensitivities of that iconic literary creature: the Inconstant Female.
Kennedy invokes The Woman Who Changed Her Mind not once, but twice today. His opinion is a love song to all women who regret their abortions after the fact, and it is in the service of these women that he justifies upholding the ban. Today's holding is a strange reworking of Taming of the Shrew, with Kennedy playing an all-knowing Baptista to a nation of fickle Biancas.
As a matter of law, the majority opinion today should have focused exclusively on what has changed since the high court's 2000 decision in Stenberg v. Carhart.Stenberg struck down a Nebraska ban that was almost identical to the federal ban upheld today. That's why every court to review the ban found the federal law, passed in 2003, unconstitutional. What really changed in the intervening years was the composition of the court: Sandra Day O'Connor, who voted to strike down the ban in 2000, is gone. Samuel Alito, who votes today to uphold it, is here.
What hasn't changed is that Anthony Kennedy finds partial-birth abortion really disgusting. We saw that in his dissent in Stenberg. That's what animates and drives his decision. His opinion blossoms from the premise that if all women were as sensitive as he is about the fundamental awfulness of this procedure, they'd all refuse to undergo it. Since they aren't, he'll decide for them.
Kennedy halfheartedly attempts to distinguish Stenberg from Gonzales. Sparing us his usual lofty opening sonnet to freedom and liberty and truth and good lighting, he opens with the terse insistence that this case is not Stenberg: The act is both "more specific" and "more precise" than its Nebraskan precursor. The court can uphold it without revisiting Stenberg. That's nice for Kennedy, since he is one of the authors of the famous paean to precedent in Casey that was the basis, in that 1992 case, for upholding Roe v. Wade.
Rather than admitting that his opinion today is at odds with Stenberg, Kennedy walks his reader through the horrors of the intact dilation and extraction procedure Congress has banned. This discussion goes on for five pages, and includes, for balance, an "abortion doctor's clinical description" of the abortion at issue, and that of a nurse who witnessed the procedure being "performed on a 26 1/2 week fetus." (The nurse's version: "the doctor stuck the scissors in the back of his head and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he think's he's going to fall.")
Kennedy contends Congress fixed the problems with the Nebraska ban in two vital ways: by making factual findings, and by narrowing the definition of the procedure such that doctors of "ordinary intelligence" know which operations will be illegal and which will not.
And then Kennedy quickly returns to the business of grossing us out. With a stirring haiku about how "respect for human life finds an ultimate expression in the bond of love the mother has for her child," the justice interpolates himself between every one of those mothers and every child she might ever bear. Without regard for the women who feel they made the right decision in terminating a pregnancy, he frets for those who changed their minds. ("It seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.") (The "infant," not the "fetus.") As both the dissenters and my colleague Emily Bazelon have pointed out, this portrayal of a rampant epidemic of regretful women may or may not be scientifically accurate. (The American Psychological Association doesn't think so.) But even if the numbers of women who would truly choose differently if they could choose again are larger than most of the medical literature indicates, one might question whether such women should be the pole star of national abortion policy.
Nobody disputes that whether or not they decide to go through with an abortion, women face a heart-wrenching choice. But for Kennedy only those women who regret the decision to abort illuminate some deeper truth. And Kennedy's solution for these flip-flopping women is elegant. Protect them from the truth. "Any number of patients facing imminent surgical procedures would prefer not to hear all details," he concedes. "It is, however, precisely this lack of information concerning the way the fetus will be killed that is of legitimate concern to the state." In Kennedy's view, if pregnant women only knew how abhorrent the procedure was, they'd always opt to avoid it. But as Justice Ruth Bader Ginsburg points out in dissent, Kennedy doesn't propose giving women more information about partial-birth abortion procedures. He says it's up to the Congress and the courts to substitute their judgment and ban the procedures altogether. ("I'm sorry Bianca, there is a procedure out there that may be safer for you, but some day, you will thank me for sparing you from it.")
Then Kennedy sorrowfully returns to the Indecisive Women. "It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound, when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast developing brain of her unborn child, a child assuming the human form."
One core proposition that's held true from Roe v. Wadeto Planned Parenthood v. Casey and Stenberg was that abortion regulations, in order to be constitutional, required an exception if the mother's health was in danger. For the first time today, Kennedy determines that a court's factual determination about whether some procedure may be necessary to protect the mother's health can just evaporate in the face of "medical uncertainty." That turns both Casey and Stenberg on their heads. After today, "medical uncertainty does not foreclose the exercise of legislative power." And even where some of the building blocks of that "uncertainty" are patently untrue. Henceforth if there is uncertainty about the health consequences of the ban, the tie will go to the banners.
Kennedy devotes the remainder of his opinion to taking cover under standing doctrine. "Standing" to bring suit is the Roberts court's trapdoor to keep pesky litigants away from the courthouse. On this front, too, Kennedy turns Casey and Stenberg on their heads with nary a backward glance. His opinion pretty much unfurls a roadmap for states seeking to enact broader bans on abortion. As Ginsburg points out in her dissent, the court's rationale for upholding the ban on intact D&Es would support a ban on the (far more common) nonintact D&E as well.
It's hard to fathom why Kennedy has so much more sympathy for the women who changed their minds about abortions than for those who did not. His concern for Inconstant Females might be patronizing in any other jurist. Coming from him, it's brilliantly ironic. Kennedy is, after all, America's Hamlet. The man who famously worried that "sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line," will long be remembered as the living incarnation of agony and indecision, And today he seamlessly rewrites his Stenberg dissent as a majority opinion that blasts his earlier Casey vote to its core.
I'm no psychologist but in light of today's Gonzales opinion one has to wonder: Is all of Kennedy's tender concern over those flip-flopping women really just some kind of weird misplaced justification for his flip-flopping self?