Gonzales v. Carhart

...At stake in cases challenging abortion restrictions is a woman’s “control over her [own] destiny.” “There was a time, not so long ago,” when women were “regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution.” Those views, this Court made clear in Casey, “are no longer consistent with our understanding of the family, the individual, or the Constitution.” Women, it is now acknowledged, have the talent, capacity, and right “to participate equally in the economic and social life of the Nation.” Their ability to realize their full potential, the Court recognized, is intimately connected to “their ability to control their reproductive lives.” Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.
--Ruth Bader Ginsburg, Dissent

The recent Supreme Court decision in Gonzales v. Carhart marks a major shift in abortion policy. As my former student, Jessica Heaven, writes in a recent op-ed for the Georgetown Law Weekly: "never before has the Court allowed a legislature, state or federal, to place a restriction on abortion without providing an exception for circumstances in which the health of the pregnant woman is in jeopardy. Gonzalez v. Carhart is an extreme shift from previous decisions in that it upholds the federal 'partial-birth abortion' ban without providing that health exception."

Why this matters: the law bans a procedure that is not an actual medical procedure ("partial-birth abortion" is a term made up by anti-choice folks). It's vague enough that it could be interpreted to prohibit abortions as early as 12 weeks. It goes against the medical advice of the American College of Obstetricians and Gynecologists. And, as Jessica notes, there's no health exception.

It also matters because the justices brought a new set of categories into their decision that now will form part of our legal precedents in this country. In his opinion, Justice Kennedy wrote, "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." This relates directly to what I said a few weeks ago about the problems with relying on common sense. Kennedy is asserting this point as something that doesn't need support because it is so self-evident. Eva Gartner, lead attorney for Planned Parenthood, notes that this was not a point either side even argued in the case--the justices came up with this particular objection all on their own. (It's also worth noting Kennedy's use of the word "mother" here, which perhaps I'll blog about later.)

In contrast to Justice Kennedy, I believe that if you're concerned about women regretting their abortions, then you should be sure that they have solid medical information in hand while they're making the choice. It seems just a bit misogynist to say, "Oh--she might regret this choice, so let's make sure she never has to make it by taking it away from her altogether."

I included the quote from Justice Ginsburg above because I think she articulates what else is at stake--the primary thing that's at stake--in this and other legal decisions about abortion: women's control over their own destiny. I've talked about this quite a bit here this year (in posts like this and this), but I don't hear enough people saying it, so I'll say it again: the ability to control her own reproduction affects every aspect of a woman's life. If women are going to be full citizens, they've got to have control over whether and when they become pregnant, and whether and when they become parents.