Father Knows BestDr. Kennedy's magic prescription for indecisive women.
Posted Wednesday, April 18, 2007, at 7:21 PM ET
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StumbleUponAnd 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. Wade to 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?
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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.)
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