"Beyond Alice in Wonderland" . . .

Marty Lederman

. . . to criminalize abortion to protect women. That's how Reva Siegel puts the point in this important piece from Linda Greenhouse in the New York Times. Greenhouse elaborates:

[N]ever until Wednesday had the court held that an abortion procedure could be prohibited because the procedure itself, not the pregnancy, threatened a woman’s health — mental health, in this case, and moral health as well. In his majority opinion, Justice Anthony M. Kennedy suggested that a pregnant woman who chooses abortion falls away from true womanhood.

“Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” he said.

Justice Kennedy conceded that “we find no reliable data” on whether abortion in general, or the procedure prohibited by the Partial-Birth Abortion Ban Act, causes women emotional harm. But he said it was nonetheless “self-evident” and “unexceptional to conclude” that “some women” who choose to terminate their pregnancies suffer “regret,” “severe depression,” “loss of esteem” and other ills.

Consequently, he said, the government has a legitimate interest in banning a particularly problematic abortion procedure to prevent women from casually or ill-advisedly making “so grave a choice.”

* * * *

In an article to be published shortly in The University of Illinois Law Review, Professor Siegel traces the migration of the notion of abortion’s harm to women from internal strategy sessions of the anti-abortion movement in the 1990s to the formation of legal arguments and public policy.

* * * *

On his blog, Balkinization, Prof. Jack M. Balkin of Yale Law School defined the message behind what he called the “new paternalism”: “Either a woman is crazy when she undergoes an abortion, or she will become crazy later on.”

Despite the activity in the states, the anti-abortion movement’s new focus remained largely under the radar until it emerged full-blown in Justice Kennedy’s opinion. As evidence that “some women come to regret their choice to abort the infant life they once created and sustained,” Justice Kennedy cited a brief filed in the case by the Justice Foundation, an anti-abortion group that runs a Web site and telephone help line for women “hurting from abortion.” The brief contained affidavits from 180 such women, describing feelings of shame, guilt and depression.

As the Greenhouse piece explains, this new woman-protective component in the Court's jurisprudence consists of at least two parts. The first is an empirical presumption that women choosing abortions regularly suffer "regret," "anguished grief," "profound sorrow," and (as if that weren't enough) "severe depression and loss of esteem."

The second is a form of paternalism in which the Court (in Justice Ginsburg's words) "deprives women of the right to make an autonomous choice, even at the expense of their safety." As Jack writes below, "[t]he basic goal of this new rhetoric is to undermine the notion that women exercise any kind of choice when they decide to have abortions. It seeks to turn the rhetoric of the pro-choice movement on its head. Women, the new rhetoric argues, don't really understand what they are doing when they decide to have abortions; as a result, they often regret having them later on."

The argument for abortion restrictions (and the informed-consent laws that Jack idetifies) is based in no small part not only on such empirical presumptions about the dire fate of women who choose abortions, but also on essentialist sex-based generalizations, most importantly that "respect for human life finds an ultimate expression in the bond of love the mother has for her child."

There are (at least) two obvious and significant problems with this new move. The first is that, until this week, to base state policy on such stereotypes and paternalism was itself a violation of the Equal Protection Clause, under numerous modern precedents. "This way of thinking," Justice Ginsburg lamented in dissent, "reflects ancient notions about women’'s place in the family and under the Constitution— ideas that have long since been discredited." As Justice Ginsburg's citations demonstrate, the Court itself had played no small role in discrediting those ideas, in a series of cases litigated by, if not (in the case of the 1996 VMI decision) written by, Justice Ginsburg herself over the past 40-plus years. (Hence my quotation in the Times yesterday that the Court's women-protective rationale was "an attack on [Justice Ginsburg's] entire life's work.") (For more on this theme, see Dahlia Lithwick here.)

The second problem is that even if what Jack calls the "New Paternalism" would be justifiable if based on actual empirical trends -- again, something that the Court has routinely rejected as unconstitutional since 1970 -- the assumptions the Court invokes about the effects of abortions upon women are concededly based not on any reliable evidence ("While we find no reliable data to measure the phenomenon . . . "), but instead merely on anecdotes culled from an amicus brief (the only authority cited).

In this respect, as Jack notes below and as as Reva Siegel's article examines in great detail, the Court's opinion is the striking culmination of a concerted litigation strategy that abortion-rights opponents designed in the past few years, in which they have so resolutely publicized anecdotal "proof" that abortions are bad for women that Justice Kennedy is now comfortable stating -- as the law of the land -- that the Court finds these truths to be "self-evident" and "unexceptional." (For much more on how this counter-narrative strategy took root and flourished so quickly, see this important article by Emily Bazelon in the New York Times Magazine back in January. And this Sarah Blustain piece in the American Prospect just last week.)

This reliance on anecdote and popular myth, rather than on empirical proof, is a troubling development, one that has echoes in the Court's first decision of the Term, the little-noticed but significant per curiam opinion in Purcell v. Gonzales.

Purcell involved an Arizona voter-identification law that had been challenged as a violation of the Constitution and federal election laws. The court of appeals temporarily enjoined operation of the law, and Arizona made an emergency application for a stay to the Supreme Court. The Court sua sponte treated the request as a petition for certiorari, granted it, and reversed the court of appeals just before last November's election, thereby allowing the identification requirements to be implemented pending a full trial on the merits. In so doing, the Court described constitutional interests on both sides of the case.

The State's compelling interest, the Court said, was preventing so-called voter fraud: "Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised."

The Court in Purcell thus unanimously credited the view that voters "feel" disenfranchised when voter fraud (allegedly) takes place in elections, and that such a "feeling" offsets the interests of voters who are disenfranchised by voter ID laws by actually driving honest citizens out of the democratic process!

This striking claim was accompanied by no citation of authority, and was based on no evidence whatsoever. Indeed, as Rick Hasen has explained in decrying the Court's "wholly unsupported empirical assumption":

[T]he available evidence . . . seems to suggest that voter identification requirements are more likely to depress turnout than to increase it, and that voter confidence in the electoral process, at least among African-Americans, is decreasing because of voter identification requirements. The empirical case for that contrary point is not yet solid, but the assumption is at least plausible given the evidence. The Court’s supposition does not even rely on any suggestive evidence, and I am aware of none. . . . Moreover, the Supreme Court did not acknowledge that some voters might “feel” disenfranchised when the state imposes barriers on voting such as a voter-identification law without proof that such laws are necessary to deter voter fraud. At the very least, the Court should have ordered briefing and oral argument on the question, which would have allowed the challengers to bring to the Court’s attention the Missouri Supreme Court’s important discussion of the issue [in its 2006 Weinschenk decision], which concluded that "if this Court were to approve the placement of severe restrictions on Missourians’ fundamental rights owing to the mere perception of a problem in this instance, then the tactic of shaping public misperception could be used in the future as a mechanism for further burdening the right to vote or other fundamental rights."

As we have learned in the wake of recent events, and as I discussed last week in connection with the several scandals swirling about the Department of Justice, this common perception of widespread voter fraud -- like the new recevied wisdom that abortions harm women -- is overwhelmingly the result not of any actual problem, but instead of a concerted effort (in this case, alas, powerfully supported by those wielding state power) to establish a mythical but increasingly canonical narrative. And here, the object of that narrative is to disenfranchise likely Democratic voters. (See, e.g., recent stories in the New York Times, McClatchy, and In These Times. See also Rick Hasen's account of one district court's recent rejection of a DOJ case based on alleged but nonexistent "voter fraud.")

Unfortunately, as in Wednesday's abortion case, the myth has so successfully taken hold in the public imagination that it has now been enshrined as the predicate for the Law of the Land.

Curiouser and curiouser . . .
Posted 1:04 AM by Marty Lederman [link]