Screw Health

The Supreme Court, in a 5-4 decision authored by Justice Kennedy, has upheld a federal law prohibiting so-called "partial birth abortions." This represents the first time the Supreme Court has upheld an anti-abortion bill that did not include a health exception for the mother. Justice Kennedy did hedge his opinion by saying that, though he was rejecting a facial challenge to the law, he would accept one "as applied." Presumably, then, if a mother was faced with a case where her health was in jeopardy, she could file suit (what happens then is anyone's guess).

This, to me, is small consolation. If a doctor tells a women that a certain medical procedure is necessary for her health, the next step should be "start the procedure," not "go to federal court."

Laws like this have consequences--not always what they are intended. Women who know that the law requires them to forfeit their bodies to the state once they become pregnant, simply may choose to forgo having children.

Regardless of what the majority opinion tells you, it's pretty clear that this ruling has overturned Stenberg v. Carhart. This is not unexpected, as Justice Kennedy issued a passionate dissent in that case (though I hoped Kennedy would tact to the center), and nobody could think that Alito replacing O'Connor would mean preserving a pro-choice vote on the court. Elections have consequence, and as Publius notes, we share some of the blame:

This case was not decided today. It was decided on November 2, 2004. Don't blame the Court, blame the American people. They voted in a Republican President and the entirely-predictable consequence was increasing restrictions on abortions. In fact, Bush is one Justice Stevens illness away from overturning Roe entirely. And for what it's worth, if any of the current Republican candidates win, Roe is over for at least a generation. Maybe you think that's good, maybe you don't. That's not the point. The point is that voting for Republicans has consequences and this is one of them. And these things are worth thinking about when you base your vote on things like John Kerry's windsurfing, or Bush's probably-fun-to-drink-with-ness.

Many people have also noted Justice Ginsburg's rather scathing dissent. While the health implications probably will have the most material impact, the biggest insult might be the majority opinion's retrograde views on women:

Revealing in this regard, the 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.' 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. 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. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

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.

She goes as far to compare the opinion to Justice Bradley's infamous concurrence in Bradwell v. State, 16 Wall. 130, 141 (1873) ("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."), possibly the most infamous example of misogyny in the Supreme Court's history.

Ginsburg then cites to a whole string of authorities--including several that note that childbirth carries at least as much of a risk, if not a stronger one, of harming a woman's psychological health than does abortion.

This is strong language for Justice Ginsburg. But it needed to be said.

UPDATE: Elsewhere, I've been asked why I didn't include any quotes from Kennedy's opinion. For sure, I only quoted once from any opinion (the Ginsburg passage), but still, fair question. But Isabel Medina has a good answer on why quotes from the majority may not be showing up in a post focusing on how this ruling disrespects women:

The majority’s opinion is striking for the almost absolute lack of focus on women. The medical procedure itself is discussed extensively. The role of the physician and medical judgment is discussed extensively. The impact on women and the idea that the right to choose to terminate a pregnancy has something to do with women, however, their right to body integrity, autonomy, liberty, is completely missing from the opinion. Only a reference to “an ultimate expression in the bond of love the mother has for her child” and the conclusion that “some women come to regret their choice to abort the infant life they once created and sustained” suggests this majority’s view of women in the context of the issue – we are by-standers to the issue and by-standers to the right ultimately recognized in Roe and Casey, rather than those most affected.

And hey, her passage includes quotes from Kennedy's opinion! So now we can all be happy.

And also, Reproductive Rights Law Professor Caitlin Borgmann has put up her first bit of legal analysis on the case, with more promised ahead.