We Take Judicial Notice . . .

Marty Lederman

From today's opinion (pp. 28-29):

"Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well." Whether to have an abortion
requires a difficult and painful moral decision. . . . While we find no
reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae
in No. 05–380, pp. 22–24. Severe depression and loss of
esteem can follow. See ibid.

(Not surprisingly, no citation, except to the amicus brief.)

Isn't there something a bit chilling and/or paternalistic in the use of this statement to justify preventing women from obtaining medical procedures that would, according to their physicians, be necessary for the preservation of their health? The Court is saving women from their own bad choices: Some mothers might not, after all, realize what five men on the Court do -- namely, that they enjoy a bond of love for their children that is the "ultimate expression" of respect for human life, and that therefore they ought to choose an alternative "way in which the fetus will be killed." "It is self-evident," writes the Court, "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."

Thank goodness the Court sits to protect women from this fate.

As one participant on a CONLAW list noted this morning, shades of Bradwell v. Illinois . . . .

Much, much more on this type of neo-paternalism in this terrific article by Reva Siegel.

UPDATE: Apologies to Justice Ginsburg. Now that I've read part of her dissent, I should add that she much more pointedly and powerfully makes the point that the Court's opinion is redolent of 1873:

[T]he Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem. [Note 7, below.] Because of women'’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28–29. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead,
the Court deprives women of the right to make an autonomous choice, even at the expense of their safety. [Footnote 9, below.]
——————
This way of thinking reflects ancient notions about women’'s place in the family and under the Constitution— ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, 208 U. S. 412, 422–-423 (1908) ("“protective "”legislation imposing hours-of-work limitations on women only held permissible in view of women’'s "“physical structure and a proper discharge of her maternal function"]”); Bradwell v. State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring) ("“Man is, or should be, woman’'s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother."”), with United States v. Virginia, 518 U. S. 515, 533, 542, n. 12 (1996) (State may not rely on "“overbroad generalizations”" about the "“talents, capacities, or preferences”" of women; "“[s]uch judgments have . . . impeded . . . women'’s progress toward full citizenship stature throughout our Nation’'s history”"); Califano v. Goldfarb, 430 U. S. 199, 207 (1977) (gender-based Social Security classification rejected because it rested on "“archaic and overbroad generalizations”" "“such as assumptions as to [women'’s] dependency”" (internal quotation marks omitted)).

Though today’'s majority may regard women’'s feelings on the matter as "“self-evident,"” ante, at 29, this Court has repeatedly confirmed that "“[t]he destiny of the woman must be shaped . . . on her own conception of her spiritual imperatives and her place in society.” Casey, 505 U. S., at 852. See also id., at 877 (plurality opinion) (“"[M]eans chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it."”); supra, at 3–4.

NOTE 7: The Court is surely correct that, for most women, abortion is a painfully difficult decision. See ante, at 28. But "“neither the weight of the scientific evidence to date nor the observable reality of 33 years of legal abortion in the United States comports with the idea that having an abortion is any more dangerous to a woman’s long-term mental health than delivering and parenting a child that she did not intend to have . . . ." ” Cohen, Abortion and Mental Health: Myths and Realities, 9 Guttmacher Policy Rev. 8 (2006); [followed by citations to numerous other authorities, in contrast to the majority's . . . nada.].

NOTE 9: Eliminating or reducing women'’s reproductive choices is manifestly not a means of protecting them. When safe abortion procedures cease to be an option, many women seek other means to end unwanted or coerced pregnancies. [again, citing several authorities].

Posted 11:50 AM by Marty Lederman [link]