Democratic Wings: Justice Kennedy says women don't know enough about their lives, their health, and their families to make decisions for themselves, so he decides to ignore medical evidence and uphold an unconstitutional law that was designed solely to overturn Roe v. Wade

April 25, 2007

Justice Kennedy says women don't know enough about their lives, their health, and their families to make decisions for themselves, so he decides to ignore medical evidence and uphold an unconstitutional law that was designed solely to overturn Roe v. Wade

From Dahlia Lithwick in Slate:

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. The key to comprehending the Supreme Court's ruling today in Gonzales v. Carhart upholding the federal partial-birth abortion ban is a mastery not of constitutional law but of a literary type. Justice Anthony Kennedy's majority opinion is less about the scope of abortion regulation than an announcement of an astonishing new test: Hereinafter, on the morally and legally thorny question of abortion, the proposed rule should be weighed against the gauzy sensitivities of that iconic literary creature: the Inconstant Female.

Kennedy invokes The Woman Who Changed Her Mind not once, but twice today. His opinion is a love song to all women who regret their abortions after the fact, and it is in the service of these women that he justifies upholding the ban. Today's holding is a strange reworking of Taming of the Shrew, with Kennedy playing an all-knowing Baptista to a nation of fickle Biancas.

As a matter of law, the majority opinion today should have focused exclusively on what has changed since the high court's 2000 decision in Stenberg v. Carhart. Stenberg struck down a Nebraska ban that was almost identical to the federal ban upheld today. That's why every court to review the ban found the federal law, passed in 2003, unconstitutional. What really changed in the intervening years was the composition of the court: Sandra Day O'Connor, who voted to strike down the ban in 2000, is gone. Samuel Alito, who votes today to uphold it, is here.

What hasn't changed is that Anthony Kennedy finds partial-birth abortion really disgusting. We saw that in his dissent in Stenberg. That's what animates and drives his decision. His opinion blossoms from the premise that if all women were as sensitive as he is about the fundamental awfulness of this procedure, they'd all refuse to undergo it. Since they aren't, he'll decide for them.

Kennedy halfheartedly attempts to distinguish Stenberg from Gonzales. Sparing us his usual lofty opening sonnet to freedom and liberty and truth and good lighting, he opens with the terse insistence that this case is not Stenberg: The act is both "more specific" and "more precise" than its Nebraskan precursor. The court can uphold it without revisiting Stenberg. That's nice for Kennedy, since he is one of the authors of the famous paean to precedent in Casey that was the basis, in that 1992 case, for upholding Roe v. Wade.

Rather than admitting that his opinion today is at odds with Stenberg, Kennedy walks his reader through the horrors of the intact dilation and extraction procedure Congress has banned. This discussion goes on for five pages, and includes, for balance, an "abortion doctor's clinical description" of the abortion at issue, and that of a nurse who witnessed the procedure being "performed on a 26 1/2 week fetus." (The nurse's version: "the doctor stuck the scissors in the back of his head and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he think's he's going to fall.")

Kennedy contends Congress fixed the problems with the Nebraska ban in two vital ways: by making factual findings, and by narrowing the definition of the procedure such that doctors of "ordinary intelligence" know which operations will be illegal and which will not.

And 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."

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?

"Probably, hanging onto the past brings more destruction than any other single cause. ...It's the Muslim fundamentalists who worship the past and ignore the reformist spirit with which Muhammad viewed women. It's the backward-looking Christian literalists who interpret religious teachings in a way that consolidates their power..." ~ Gloria Steinem

"'Inherent differences' between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity." ~ Ruth Bader Ginsberg

"As a woman, I have no country. As a woman, my country is the world." ~ Virginia Woolf

"...remember the ladies and be more generous and favorable to them than your ancestors... If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation." ~ Abigail Adams

"Bloody treason, murderous act
Not by women were designed.
Bells o'erthrown nor churches sacked
Speak not ill of womenkind."
~ Gearoid Iarla Fitzgerald

"We are coming down from our pedestal and up from the laundry room. We want an equal share in government and we mean to get it." ~ Bella Abzug

"Too often the great decisions are originated and given form in bodies made up wholly of men, or so completely dominated by them that whatever of special value women have to offer is shunted aside without expression." ~ Eleanor Roosevelt

"If we are to achieve a richer culture, rich in contrasting values, we must recognize the whole gamut of human potentialities, and so weave a less arbitrary social fabric, one in which each diverse gift will find a fitting place." ~ Margaret Mead

"There cannot be true democracy unless women's voices are heard. There cannot be true democracy unless women are given the opportunity to take responsibility for their own lives." ~ Hillary Rodham Clinton

"Of my two 'handicaps' being female put more obstacles in my path than being black." ~ Shirley Chisholm

"Sometimes, I feel discriminated against, but it does not make me angry. It merely astonishes me. How can any deny themselves the pleasure of my company?" ~ Zora Neale Hurston

"Eventually, all things merge into one; and a river runs through it. The river was cut by the world's great flood and runs over rocks from the basement of time. On some of the rocks are timeless raindrops. Under the rocks are the words, and some of the words are theirs..." ~ Norman Maclean

"There was a strange stillness. The birds, for example - where had they gone?... It was a spring without voices." ~ Rachel Carson

"If you have men who will exclude any of God's creatures from the shelter of compassion and pity, you will have men who will deal likewise with their fellow men." ~ St. Francis of Assisi

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"God has cared for these trees, saved them from drought, disease, avalanches, and a thousand straining, leveling tempests and floods; but He cannot save them from fools." ~ John Muir

"The idea of wilderness needs no defense, it only needs defenders." ~ Edward Abbey

"We could never have loved the earth so well if we had had no childhood in it... Our delight in the sunshine on the deep-bladed grass to-day might be no more than the faint perception of wearied souls, if it were not for the sunshine and the grass in the far-off years which still live in us, and transform our perception into love." ~ George Eliot (Mary Anne Evans)

"Those who dwell, as scientists or laymen, among the beauties and mysteries of the earth are never alone or weary of life." ~ Rachel Carson

"When one tugs at a single thing in nature, he finds it attached to the rest of the world." ~ John Muir

"Being pro-choice is trusting the individual to make the right decision for herself and her family, and not entrusting that decision to anyone wearing the authority of government in any regard." ~ Hllary Rodham Clinton

"The will of the people is the only legitimate foundation of any government, and to protect its free expression should be our first object." ~ Thomas Jefferson

"A nation that is afraid to let its people judge the truth and falsehood of ideas in an open market is a nation that is afraid of its people." ~ John F. Kennedy

"I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations." ~ James Madison

"When you think of the long and gloomy history of man, you will find more hideous crimes have been committed in the name of obedience than have ever been committed in the name of rebellion." ~ C. P. Snow

"Unthinking respect for authority is the greatest enemy of truth." ~ Albert Einstein

"Necessity is the plea of every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves." ~ William Pitt

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." ~ Benjamin Franklin

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"Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current which can sweep down the mightiest walls of oppression and resistance." ~ Robert F. Kennedy

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"We can have democracy in this country or we can have great wealth in a few hands, but we can't have both." ~ Louis Brandeis

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"I hope our wisdom will grow with our power, and teach us, that the less we use our power the greater it will be." ~ Thomas Jefferson

"The ultimate weakness of violence is that it is a descending spiral begetting the very thing it seeks to destroy. Instead of diminishing evil, it multiplies it." ~ Martin Luther King Jr.

"When men talk about defense, they always claim to be protecting women and children, but they never ask the women and children what they think." ~ Patricia Schroeder

"I hate war as only a soldier who has lived it can, only as one who has seen its brutality, its futility, its stupidity." ~ Dwight D. Eisenhower

"What difference does it make to the dead whether the mad destruction is wrought under the name of totalitarianism or the holy name of liberty and democracy?" ~ Mohandas Gandhi

"One is left with the horrible feeling now that war settles nothing; that to win a war is as disastrous as to lose one." ~ Agatha Christie

"Mankind must put an end to war, or war will put an end to mankind... War will exist until that distant day when the conscientious objector enjoys the same reputation and prestige that the warrior does today." ~ John F. Kennedy

"Blessed are the peacemakers: for they shall be called the children of God." ~ Jesus

"Every gun that is fired, every warship launched, every rocket fired, signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. The world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children." ~ Dwight D. Eisenhower

"When will our consciences grow so tender that we will act to prevent human misery rather than avenge it?" ~ Eleanor Roosevelt

"And thus I clothe my naked villany with odd old ends stol'n forth of holy writ, and seem a saint when most I play the devil." ~ William Shakespeare

"And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing... in the corners of the streets, that they may be seen of men... But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret..." ~ Jesus

"Believing with you that religion is a matter which lies solely between man & his god, ... legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state." ~ Thomas Jefferson

"Persecution is not an original feature in any religion, but it is always the strongly marked feature of all religions established by law." ~ Thomas Paine

"Heroism on command, senseless violence, and all the loathsome nonsense that goes by the name of patriotism - how passionately I hate them!" ~ Albert Einstein

"True patriotism hates injustice in its own land more than anywhere else." ~ Clarence Darrow

"When a whole nation is roaring Patriotism at the top of its voice, I am fain to explore the cleanness of its hands and purity of its heart." ~ Ralph Waldo Emerson

"Guard against the impostures of pretended patriotism." ~ George Washington

"The nationalist not only does not disapprove of atrocities committed by his own side, he has a remarkable capacity for not even hearing about them." ~ George Orwell

"To (say) that we are to stand by the president right or wrong is not only unpatriotic and servile, but it's morally treasonable to the American public." ~ Theodore Roosevelt

"In America, anybody can be president. That's one of the risks you take." ~ Adlai Stevenson

"On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron." ~ H.L. Mencken

"All political movements are like this - we are in the right, everyone else is in the wrong. The people on our own side who disagree with us are heretics, and they start becoming enemies. With it comes an absolute conviction of your own moral superiority. There's oversimplification in everything, and a terror of flexibility." ~ Doris Lessing

"I don't give 'em hell. I just tell the truth, and they think it's hell." ~ Harry Truman

"I'm not a member of any organized political party, I'm a Democrat!" ~ Will Rogers

"I never was surer of my position that no self-respecting woman should wish or work for the success of a party that ignores her political rights." ~ Susan B. Anthony

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April 25, 2007