Open 'er Up

The Supreme Court, as most observers now know, made a big screw-up in Kennedy v. Louisiana (banning the death penalty for child rape). It (along with all other parties in the case, it must be said) missed a change in military law which authorized the death penalty for child rape -- which is significant because much of the majority opinion was based around a supposed evolving consensus away from imposing capital punishment for that crime. And as a result, Louisiana attorneys are asking the Supreme Court to reopen the case, since this error may of substantively affected the outcome of the case.

Meanwhile, Anthony Kennedy, as most Court observers recall, based a significant part of his opinion Carhart II (upholding a federal partial birth abortion ban) on the proposition that "some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow." This was, at the time, a statement wholly without evidence, and today we learn that it is in all relevant respects false. Women who have abortions are in fact no more likely to face mental health problems than women who deliver. And since giving birth actually is more physically risky for women than is abortion, it is exceedingly difficult to honestly justify the partial-birth abortion ban on the grounds of protecting women's health.

So, is anybody saying that Carhart should be reopened?

Of course, there are differences between the cases. Kennedy involved an elementary and clear-cut error of fact, while Carhart's error was with respect to a complicated empirical question. On the other hand, the mistake in Kennedy was only one point in an array of cases making the majority's claim. In Carhart, by contrast, there was never any evidence for Justice Kennedy's argument in the first place, a point the new study puts a big exclamation point on. Of course, that might also indicate that Justice Kennedy would have made his argument no matter what empirical data was presented before him, making this most recent study quite irrelevant.

Oh well. I thought it was interesting, anyway.

Incidentally, my view as to whether the death penalty for child rapists is justified mirrors Matthew Yglesias' pretty exactly.