5.17.2007

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.

5 comments:

claire said...

And the place to start would be in sex ed classes. Who is least likely to know what is happening? Someone who only received 'abstinence only until heterosexual marriage' "education." Really people -- is sex still so taboo that we can;t even teach what it is, why it matters and what some of its potential consequences are?

Margaret said...

okay i've tried to post my brilliant comment like 3 times but i keep misspelling my own last name and google is getting angry with me.

so anyway, i was going to say a big AMEN! to this post, but then i paused and thought really hard with my women's studies brain and the corrected comment i'd like to leave is AWOMEN!!

i am clever, yes?

Alison said...

Margaret, you are indeed clever. And I'm glad you've figured out how to spell your own last name.

Anonymous said...

What seems right to you is not always so. Could what you profess have been born in guilt, rationalization and self-interest and tainted with selfishness.

Who was it who said the following? Does it mean anything to you? How sure are you that what you are selling that which is in the best interest of those to whom you possess power? Do you have the courage to print this response to your blog?

>>Elites are all too prone to over-estimate the importance of the fact that they average more knowledge per person than the rest of the population -- and under-estimate the fact that their total knowledge is so much less than that of the rest of the population.

>>They over-estimate what can be known in advance in elite circles and under-estimate what is discovered in the process of mutual accommodations among millions of ordinary people.

>>Central planning, judicial activism, and the nanny state all presume vastly more knowledge than any elite have ever possessed.

>>The ignorance of people with Ph.D.s is still ignorance, the prejudices of educated elites are still prejudices, and for those with one percent of a society's knowledge to be dictating to those with the other 99 percent is still an absurdity.

Biffle said...

is it possible to drunk dial a blog?