an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
"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. 05380, pp. 2224. 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 . . . .
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 2829. 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 womans free choice, not hinder it."); supra, at 34.
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 womans 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].
Here is the entire syllabus summary from which Professor Lederman's passage comes. This passage appears to be part of an open invitation to enact laws requiring abortionists to disclose the details of how he or she proposes to kill the unborn child (or in Kennedy's words, the "living fetus").
3. The Act, measured by its text in this facial attack, does not impose a substantial obstacle to late-term, but previability, abortions, as prohibited by the Casey plurality, 505 U. S., at 878. Pp. 26ñ37.
(a) The contention that the Act's congressional purpose was to create such an obstacle is rejected. The Actís stated purposes are protecting innocent human life from a brutal and inhumane procedure and protecting the medical community's ethics and reputation. The government undoubtedly has an interest in protecting the integrity and ethics of the medical profession. Washington v. Glucksberg, 521 U. S. 702, 731. Moreover, Casey reaffirmed that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman. See, e.g., 505 U. S., at 873. The Act's ban on abortions involving partial delivery of a living fetus furthers the Governmentís objectives. Congress determined that such abortions are similar to the killing of a newborn infant. This Court has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned. Glucksberg, supra, at 732-735, and n. 23. The Act also recognizes that respect for human life finds an ultimate expression in a motherís love for her child. Whether to have an abortion requires a difficult and painful moral decision, Casey, 505 U. S., at 852-853, which some women come to regret. In a decision so fraught with emotional consequence, some doctors may prefer not to disclose precise details of the abortion procedure to be used. It is, however, precisely this lack of information that is of legitimate concern to the State. Id., at 873. The Stateís interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. The objection that the Act accomplishes little because the standard D&E is in some respects as brutal, if not more, than intact D&E, is unpersuasive. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, undermines the public's perception of the doctorís appropriate role during delivery, and perverts the birth process. Pp. 26-30.
It appears that Gonzales has eliminated a requirement that abortion regulations have a health of the mother exception in order to survive a facial challenge so long as there is dispute in the medical community as to whether the regulated abortion method is required to preserve the health of the mother.
That probably leaves open the question of whether health of the mother can be a legal defense if the abortionist uses "intact D&E" to kill the "living fetus" and is then prosecuted.
Even so, this is an enormous change because the requirement of a health exception which was determined by the abortionist essentially legalized abortion on demand through the entire term of the pregnancy so long as the abortionist considered birth to be a danger to the health of the mother.
Kennedy does not shy away from describing standard and intact D&E's in all their gruesome detail over pages 3-9 of the opinion.
It is often a fool's errand to guess where a Justice may stand on future issues which may come before the Court, but Kennedy is obviously appalled by the entire D&E procedure of literally ripping unborn children apart.
Kennedy may be a possible vote to seriously restrict Roe or even reverse it.
I disagree with you that Kennedy might be a vote to overturn Roe v Wade or Casey. He had the opportunity vote that way in Casey.
Kennedy's modus operandi seems to be this very Catholic type of paternalism. He gets appalled in a very self-righteous kind of way. I think it's very apparent in Hill v Colorado (2000) (free speech case where Colorado prohibited certain types of speech within [x] yards of abortion clinics) where he wrote, dissenting:
"The Court’s holding contradicts more than a half century of well-established First Amendment principles. For the first time, the Court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk."
Kennedy views abortion as a "profound moral issue", and I think from his opinions we can see him grappling with it. I don't think he's come to a resolution on it, but I think his sense of, for lack of a better word again, paternalism makes him revile some of the more "gruesome" abortion methods.
Even if Kennedy did vote to overturn Roe. I doubt such a situation would happen anytime in the near or intermediate future. As noted elsewhere, Scalia and Thomas had concurrence that expressed their view that Roe was wrongly decided (conspicuously absent was whether Roe should be overturned--stare decises issues).
I just doubt that even if five justices were inclined to overturn Roe that they would actually do so. I'd bet they would duck the issue or find some procedural grounds for avoiding the specific issue of overturning Roe. The social impact of such a decision would be enormouse. Surely, they will chip away as much as possible. But the basic idea of abortion as a Constitutionally guaranteed right (with restrictions, perhaps substantial) is a long way from being overturned.
Another interesting initial take from reading the opinion is that Kennedy is only assuming and not deciding that Casey applies. It appears that Kennedy is distancing himself from O'Connor's opinion and is keeping his options open in the future.