Skip to comments.Court ruling hints at new abortion stance
Posted on 07/21/2007 2:56:02 AM PDT by monomaniac
Undoubtedly, the most significant aspect of the Supreme Court's April decision in Gonzales v. Carhart was that it narrowly upheld Congress' "partial-birth abortion" ban.
That said, Justice Anthony Kennedy's opinion may affect America more for what it said about abortion than what it decreed about the law of abortion. The case appears to have opened up a new phase in abortion jurisprudence -- one in which abortion is largely permitted though disdained.
This is not surprising, because Carhart represents the first recent occasion on which Kennedy set our national abortion policy. What may be surprising is how greatly both sides of the abortion debate may have misread Kennedy in the past.
Many well-informed observers believe that Kennedy was set to overturn Roe v. Wade in 1992 in the case of Planned Parenthood v. Casey. At some point while the decision was being written, he changed sides and joined Justices Sandra Day O'Connor and David Souter in their decisive plurality opinion that affirmed Roe while emphasizing each state's "legitimate and substantial interest in preserving and promoting fetal life."
With the 1993 retirement of Roe opponent Justice Byron White and his replacement by pro-Roe Justice Ruth Bader Ginsburg, Kennedy was no longer the "fifth" vote in abortion cases -- that role fell to O'Connor. When O'Connor retired in 2006 and was replaced by Justice Samuel Alito, Kennedy again became the deciding vote on abortion.
Carhart reveals that Kennedy's interpretation of Casey's possible limitations may have real teeth. Whereas O'Connor would overturn abortion regulations for virtually any reason, Kennedy seems poised to enforce Casey's more restrictive language. Three major features of his abortion jurisprudence are discernible.
First, abortions performed before viability will receive high-level constitutional protection with no substantial interference permitted. Second, after viability, the state's interest in preserving and promoting fetal life may allow substantial restrictions. Third, abortion is not benign and its capacity to harm women psychologically is undeniable.
Kennedy's view of abortion can be summarized as follows: Abortion is a regrettable but necessary evil that will be protected within well-defined boundaries. Even though Kennedy will protect most abortions (i.e., those performed before viability), he clearly regards the procedure as destructive to both child and mother.
His language for the court bears this out: "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." Kennedy then notes matter-of-factly: "Severe depression and loss of esteem can follow."
Abortion opponents have asserted for years that abortions can injure women psychologically, and in one fell swoop the court bestowed considerable credibility on those arguments. Furthermore, Kennedy's citations in this passage are important and have been overlooked.
Notably, the court referenced the friend of the court brief filed by the anti-abortion Justice Foundation on behalf of Sandra Cano and "180 women injured by abortion." Cano was the "Mary Doe" in Doe v. Bolton, Roe's companion case in 1973.
The brief contains Cano's repudiation of her Doe involvement, which, she states, rested on her lawyer's false claim that Cano's application for an abortion had been rejected by Georgia officials. Cano swears that she never sought an abortion. The brief also attaches excerpts from affidavits in which more than 100 women discuss the harm their abortions caused them. These moving statements make for powerful reading and might have affected the justices.
The court also cited specific pages in the brief that discuss the work of Dr. David Reardon, a biomedical ethicist and director of the Elliot Institute who has specialized in studying the effects of abortion on women. In the first of the pages referenced, the brief provides a list of psychological effects from abortion derived from Reardon's work.
That list includes: "emotional 'paralysis,' guilt and remorse, nervous disorders, sleep disturbances, sexual dysfunction, depression, loss of self-esteem, self-destructive behavior such as suicide, thoughts of suicide and alcohol and drug abuse, chronic problems with relationships, dramatic personality changes, anxiety attacks, difficulty grieving, increased tendency toward violence, chronic crying, difficulty concentrating, flashbacks and difficulty in bonding with later children."
It is difficult to read the court's text and citations as anything but a signal that it now recognizes that abortion can result in such psychological harm. As we go forward, Kennedy's less sanguine view of abortion will determine not only the constitutional limits of abortion regulation but also the image the court paints of abortion and its consequences for women.
When all is said and done, it may be this secondary aspect of Carhart and the cases to follow that will have the greatest effect on the nation's abortion debate.
What a disgrace that Republicans went along with this ACLU leftist to get appointed without even the slightest bit of a fight or resistance. Didn't the GOP learn nothing from Bork or Thomas hearings?
Its not only that the Republicans "went along" with her, they (Hatch) actualy recommended her!!
It wouldn't have gone down that way in 1995. The "Contract with America" Republican surge put a bit of backbone in Pubbies that had gotten way too chummy with Rats in the previous forty years.