Balkinization: Don’t do anything you’re going to regret later

Don’t do anything you’re going to regret later

Andrew Koppelman

"Marry, and you will regret it. Do not marry, and you will also regret it. Marry or do not marry, you will regret it either way. Whether you marry or you do not marry, you will regret it either way. Laugh at the stupidities of the world, and you will regret it; weep over them, and you will also regret it. Laugh at the stupidities of the world or weep over them, you will regret it either way. Whether you laugh at the stupidities of the world or you weep over them, you will regret it either way. Trust a girl, and you will regret it. Do not trust her, and you will also regret it. Trust a girl or do not trust her, you will regret it either way. Whether you trust a girl or do not trust her, you will regret it either way. Hang yourself, and you will regret it. Do not hang yourself, and you will also regret it. Hang yourself or do not hang yourself, you will regret it either way. Whether you hang yourself or do not hang yourself, you will regret it either way."

Soren Kierkegaard's observation, just quoted, is pertinent to Justice Kennedy's observation, in Gonzales v. Carhart, that abortion methods may be restricted because "some women come to regret their choice to abort the infant life they once created and sustained," possibly resulting in "[s]evere depression and loss of esteem." Justice Ginsberg responds by citing peer-reviewed studies showing that women who abort show no higher rate of psychiatric disorder than those who carry pregnancy to term. But this doesn't really disprove Kennedy's point. Kennedy admits that he has "no reliable data to measure the phenomenon," but thinks that it is "unexceptionable" that this story is true of "some women." All he needs to sustain his claim is anecdotal evidence that this kind of thing sometimes happens.

But what is the major premise of this argument? That constitutional liberties can be restricted if it sometimes happens that someone regrets exercising the liberty in a given way? It's hard to imagine any liberty that no one ever regrets. Some people who criticize actions of the government later wish that they had kept their mouths shut. Some criminal suspects regret that they didn't confess everything when the police first interrogated them. Some of the slaves freed by the Thirteenth Amendment were old and infirm, and some of them probably regretted leaving the plantation.

It is hard to imagine the boundaries of this principle as Kennedy has stated it. He cannot possibly mean it. One can only hope that, at some point, contemplating what he has written, he regrets it.

Posted 6:12 PM by Andrew Koppelman [link]

Comments:

Great Point!

Having Liberty of necessity involves the Liberty to Regret! (Except in this court's view!)

# posted by

Karen McL : 8:51 PM

This two sentence comment is just a small one of a laundry list of permissible government purposes Kennedy was offering in applying the rational basis test to abortion.

Abortion proponent's fixation on this rather small tree missed the enormous change in the forest - the change from O'Connor's midrange scrutiny "undue burden" test to a standard rational basis test.

# posted by

Bart DePalma : 8:59 PM

I commend Andy for a brilliant posting. I have no great desire to enter into the general debate about abortion. But Andy is surely right that "saving people from making regrettable choices" is inadmissible as a decision rule in anything we might define as a free society. I do believe that the state can legitimately (i.e., as a constitutional matter) prevent people from making choices that will generate addictive behavior, so that their "regret" is mixed with difficulty extending into impossibility of breaking the addiction. No reasonable person would defend restrictions on abortion on this ground. The only legitimate argument for restriction requires that one regard the fetus as being sufficiently a "person" to allow the state to prefer the interests of the fetus/person over the mother/person. That argument I can understand and respect as an intellectual matter, even if, at the end of the day, I remain a supporter of reproductive choice. But I do believe that the paternalistic principle so thoughtlessly enunciated by Justice Kennedy should be denounced by anyone who professes him/herself to be committed to the notion of personal autonomy in making decisions about how to live one's life.

# posted by

Sandy Levinson : 10:45 PM

What struck me as I read first Marty Lederman's post and now yours on the Regret Syndrome aka the illusory Post Abortion Syndrome was that in Justice Kennedy's mind, evidence for it or against it was irrelelvant.

The Bush administration is the apogee of the what seems to be the conservative's essential principle and state of mind. If the evidence isn't proving the ideological predispostion one has then evidence be damned.

It could now be that the Court is becoming another evidence free zone in this government.

# posted by

debcoop : 11:53 PM

Kennedy's brief note that some women suffer psychological harm after undergoing an abortion does not stand alone. Rather, it is part of an argument that the state has an interest in requiring that mothers who are considering abortion be fully informed of how the abortion will be performed and the potential results of that abortion, including psychological harm to the mother.

This part of the Court's finding may have a significant effect on pending cases.

For example, the 8th Circuit recently heard oral arguments on North Dakota's law which requires abortionists to inform mothers that "an abortion ends a human life, that women have a right to continue the pregnancy, and that abortion may cause the woman psychological harm, including thoughts of suicide." This would appear to be an appropriate test case to apply Kennedy's argument.

State courts in Florida and Missouri have already upheld different versions of informed consent laws. After Gonzales, this trend is likely to accelerate.

# posted by

Bart DePalma : 9:08 AM

"What struck me as I read first Marty Lederman's post and now yours on the Regret Syndrome aka the illusory Post Abortion Syndrome was that in Justice Kennedy's mind, evidence for it or against it was irrelelvant."

That's "rational basis" scrutiny for you. The only proof involved in that kind of "scrutiny" is the proof that a law was enacted out of nothing but insane malevolence, that you have to provide to get a law struck down under that standard.

# posted by

Brett : 9:24 AM

No one denies Kennedy's casuistry, any more than one denies Roe v Wade's casuistry. The "objective" is to find a prudent policy which comports with our moral and ethical intuitions, while balancing our human rights. An overwhelming majority of Americans believe in a woman's right to control her body, her decision in self-determination, her autonomy, her choice to abort, etc.

But they also "see" a human embryo at Week 23 as more than a "parasite," a "growth," or a "blob." At Week 23, after undergoing the entire process of Evolution in the micro-order of the womb, suddenly the embryo takes a very human appearance. An unmistakably human appearance. One that is also sentient. One that has certain "rights" too.

Society desires that women make elective abortions before week 23, which is ample time, and in which 97% of abortions are done. Abortions after week 23 should proceed only if the physical harm to the mother is entailed, not as a last-minute family-planning decision.

The casuistry over abortions, beginning with Roe, has been cast in absolutist terms by Pro-Life and NARAL extremes. The Legislature, confirmed by the Courts, has adopted moderation, based on our moral and ethical intuitions, not on dogmatism. Compromise is reached, and all but the absolutists are satisfied, notwithstanding the casuistry in any of the various decisions. No "right" is absolute, and no right to an abortion is absolute, either.

Those who argue "medical necessity" after week 23 still have it -- either by appeal to a sympathetic court or by exigent circumstances, but only if the mother's life or physical health is at risk. The Decision and Law are Prudent, even if the reasoning is specious. But Roe's reasoning was no less specious, indifferent to embryonic sentience, indifferent to moral and ethical intuitions, and indifferent to a "balance" of rights.

My only regret in "affirming" this law is that the onus in placed entirely on the physician, not on all the parties. I hope that prudent minds will remedy this defect. But, with this law, we have a prudent policy that avoids extremists' demands for some absolute "this" or "that." In a democracy, compromise is often the best policy. In this case, it is a prudent policy above all, casuistry notwithstanding.

# posted by

Anonymous : 1:28 PM

We have lots and lots of laws restricting people's choices just because some people regret them later. I can't get an abortion from anybody except a doctor, for one thing. Buildings codes, the FDA, bar exams, barber licenses, cooling-off periods, the Bondage cases,.... the list is very long. So Justice Kennedy's "regret" reason is no innovation.

# posted by

Someone : 1:51 PM

Gay Species,

One mistake: the fetus is not sentient in any way distinguishable from any other organism on the planet. Full sentience is actually reached three months after birth, when the brain is fully myelinated and can act as a coherent unit.

Remember, when you see a newborn smile, it's just gas. It sure looks like a person - but empirically, that means nothing. And it's a good thing that it looks like a person, but in terms of science, what is good and what is true are clearly distinguishable.

# posted by

RandomSequence : 3:18 PM