Father Knows BestDr. Kennedy's magic prescription for indecisive women.
By Dahlia LithwickPosted Wednesday, April 18, 2007, at 7:21 PM ET
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.
Related in Slate
Dahlia Lithwick covered oral argument in Gonzaleshere, and William Saletan examined the arrogance of the ban here. Warren Hern worries that he may have in fact violated the ban and Saletan makes the case for an anti-Roe justice.
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.
Father Knows Best: Dr. Kennedy's magic prescription for indecisive women.
Dahlia Lithwick is a Slate senior editor.
Photographs of: anti-abortion activists by Jonathan Ernst/Getty Images; Supreme Court Justice Anthony Kennedy on Slate's home page by Chip Somodevilla/Getty Images.
COMMENTS
Remarks from the Fray:
Little attention has been given to the proscription that really creates the controversy: hat a partial-birth abortion will be illegal both pre- and post-viability. In other words, the procedure will always be illegal even if the fetus cannot survive outside the womb. To pro-choice advocates, this ruling must appear as "the camel's nose under the tent," where the camel's body would be the complete reversal of Roe v. Wade. Surely, if the fetus is not viable when aborted, then the method of abortion could not be flatly banned under the common understanding of the Roe decision. Yet, here the Court has upheld a complete ban on a particular type of abortion procedure even if the fetus is not viable.
The unanswered question, then, is why doesn't viability matter? Indeed, why doesn't Congress instead ban all abortions of viable fetuses except where necessary to protect the life of the mother? If Congress were truly concerned about the life of the unborn child, Congress would stop micromanaging abortion procedures and simply prohibit the abortion of any viable fetus except to protect the life of the mother. […]
Although a determination of viability may not be easy to enforce, the real reason for banning any particular abortion should be to protect the life of the unborn child. Iin the balancing between the health of the mother and the life of the child, viability would be the rational tipping point in favor of the child. After all, if the child would be viable outside of the womb when delivered, the child's life could be reasonably considered taken not because of some religious belief, but as a scientific fact.
Instead, Congress has chosen to limit the protection of viable fetuses, which apparently may still be aborted by another procedure, while restricting the rights of women and their doctors to choose a particular procedure to abort non-viable fetuses. In that respect, at least, the Act upheld by the Court is the worst abortion of them all.
It seems to me that we ban all kinds of procedures because we are uncertain whether they are effective. Certainly there is dispute over medical marijuana, for example, and there are a lot of drugs and treatments people swear by but cannot get approval from the FDA as effective. I don't see why this particular procedure is carved out as separate in the face of "uncertainty."
What did Justice Kennedy do that was inconsistent with a living Constitution? He has considered many positions and even weighed in high and middle brow culture, if not laws of other nations, to create consensus rulings before. For doing so, he has often won the love of the judicial activists. Today's decision is consistent with that.
Did Justice Kennedy not create a new right for women, the right not to have regrets? The Left has a long record of applauding when Justices create new rights out of whole cloth. I have read the Constitution of The United States of America, and I have never read the words "a right to privacy." When the right of privacy and abortions were bestowed by an all male court to the female population of the United States, the Left sang hosannas to the Supreme Court, or at least to the 5/9ths majority of it. What is different now that a man creates the right not to have regrets about abortions? The concern is consistent with the loving paternalism of an activist court; The Court is simply continuing down the same primrose path it has tread for many years
When talking abortion, feminists immediately jump to cases of rape, incest and maternal health risk as reasons to continue allowing such practices. Fortunately, these circumstances are present in a minute percentage of cases, and only the last one could justify late abortion. Rather, the need for partial birth abortion most commonly arises because a woman has fretted over what to do for so long that a partial birth abortion is the only abortion possible.
It is amazing to me that a man whose sperm has fertilized an egg has absolutely no choice in his future as a father. He is not allowed to absolve himself of financial responsibility for that child. He may have been duped, it doesn't matter. He is forced to take responsibility. And yet a woman does not have to take responsibility for obtaining an abortion at the earliest point possible. She is still allowed an opt-out well into the second trimester, when the fetus is legally considered a human being, and can probably survive with intensive neonatal care.
I don't care about the legalese. I'm just disgusted by the degree to which women are given a free pass in our society.
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.
PRINT
DISCUSS
E-MAIL
RSS
RECOMMEND...
Facebook
MySpace
Mixx
Digg
Reddit
del.icio.us
Furl
Ma.gnolia
Sphere
StumbleUpon
After Fort Hood, There's No Excuse for the Ban on Women in Combat
What Does "Stable Condition" Mean? Absolutely Nothing.
Jim Carrey's Admirably Restrained Scrooge
The Great New Single That's a Little Bit Whitney Houston and a Little Bit Rusted Root
Joe Biden Explains His Gaffe-Evasion Strategy
The Box: A Creepy, Confusing Thriller From the Guy Who Brought You Donnie Darko
Remarks from the Fray:
Little attention has been given to the proscription that really creates the controversy: hat a partial-birth abortion will be illegal both pre- and post-viability. In other words, the procedure will always be illegal even if the fetus cannot survive outside the womb. To pro-choice advocates, this ruling must appear as "the camel's nose under the tent," where the camel's body would be the complete reversal of Roe v. Wade. Surely, if the fetus is not viable when aborted, then the method of abortion could not be flatly banned under the common understanding of the Roe decision. Yet, here the Court has upheld a complete ban on a particular type of abortion procedure even if the fetus is not viable.
The unanswered question, then, is why doesn't viability matter? Indeed, why doesn't Congress instead ban all abortions of viable fetuses except where necessary to protect the life of the mother? If Congress were truly concerned about the life of the unborn child, Congress would stop micromanaging abortion procedures and simply prohibit the abortion of any viable fetus except to protect the life of the mother. […]
Although a determination of viability may not be easy to enforce, the real reason for banning any particular abortion should be to protect the life of the unborn child. Iin the balancing between the health of the mother and the life of the child, viability would be the rational tipping point in favor of the child. After all, if the child would be viable outside of the womb when delivered, the child's life could be reasonably considered taken not because of some religious belief, but as a scientific fact.
Instead, Congress has chosen to limit the protection of viable fetuses, which apparently may still be aborted by another procedure, while restricting the rights of women and their doctors to choose a particular procedure to abort non-viable fetuses. In that respect, at least, the Act upheld by the Court is the worst abortion of them all.
--PubliusToo
(To reply, click here.)
It seems to me that we ban all kinds of procedures because we are uncertain whether they are effective. Certainly there is dispute over medical marijuana, for example, and there are a lot of drugs and treatments people swear by but cannot get approval from the FDA as effective. I don't see why this particular procedure is carved out as separate in the face of "uncertainty."
--Clown_Nose
(To reply, click here.)
What did Justice Kennedy do that was inconsistent with a living Constitution? He has considered many positions and even weighed in high and middle brow culture, if not laws of other nations, to create consensus rulings before. For doing so, he has often won the love of the judicial activists. Today's decision is consistent with that.
Did Justice Kennedy not create a new right for women, the right not to have regrets? The Left has a long record of applauding when Justices create new rights out of whole cloth. I have read the Constitution of The United States of America, and I have never read the words "a right to privacy." When the right of privacy and abortions were bestowed by an all male court to the female population of the United States, the Left sang hosannas to the Supreme Court, or at least to the 5/9ths majority of it. What is different now that a man creates the right not to have regrets about abortions? The concern is consistent with the loving paternalism of an activist court; The Court is simply continuing down the same primrose path it has tread for many years
--IMKessel
(To reply, click here.)
When talking abortion, feminists immediately jump to cases of rape, incest and maternal health risk as reasons to continue allowing such practices. Fortunately, these circumstances are present in a minute percentage of cases, and only the last one could justify late abortion. Rather, the need for partial birth abortion most commonly arises because a woman has fretted over what to do for so long that a partial birth abortion is the only abortion possible.
It is amazing to me that a man whose sperm has fertilized an egg has absolutely no choice in his future as a father. He is not allowed to absolve himself of financial responsibility for that child. He may have been duped, it doesn't matter. He is forced to take responsibility. And yet a woman does not have to take responsibility for obtaining an abortion at the earliest point possible. She is still allowed an opt-out well into the second trimester, when the fetus is legally considered a human being, and can probably survive with intensive neonatal care.
I don't care about the legalese. I'm just disgusted by the degree to which women are given a free pass in our society.
--kuruman
(To reply, click here.)
(4/23)