I’ve had a marathon week of reading Supreme Court cases about reproductive rights - which really doesn’t differ that much from my normal repertoire of reading, except that this time it was for class so I was taking lots of notes. My assignments included Griswold v. Connecticut, Roe v. Wade, and Planned Parenthood v. Casey.
Appropriately, the same day we were going to discuss Roe and Casey, SCOTUS handed down its decision in Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act that was signed into law in 2003. Because Casey is such a long opinion, I didn’t have time to read Carhart the day it came out, but I finished it this morning. A friend, who knew that I was worked up about the case, recommended that I read Dahlia Lithwick’s response in Slate to make me less angry. It didn’t help, but it’s an interesting read.
Lithwick focuses on the majority opinion, written by Anthony Kennedy and signed by four of the other eight justices, and analyzes some of the (to be generous) less legally-grounded assertions slapped in the middle of the decision. Specifically, three paragraphs near the end of Kennedy’s opinion stand out:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. 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. Severe depression and loss of esteem can follow.
In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue.
It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. The State has an interest in ensuring so grave a choice is well informed. 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. [citations omitted]
Lithwick connects this language to a classic literary type, the “Inconstant Female,” a woman who can’t make firm decisions and who needs constant guidance from stronger, more worldly individuals (i.e., husbands, the state, Anthony Kennedy, etc.). I’m well acquainted with this woman, thanks to all my college English classes (she’s everywhere in Victorian literature), and I was sorry to see her rear her pea-brained head again in law school. She was around a lot in 19th century cases, but she still pops up once in a while even now. Byron White was all over her in his dissent in Roe, where he talked about women getting abortions for “convenience,” on a “whim,” out of “caprice.” (All I can think of is a Sarah Silverman quote: “The other day I really, really wanted to get an abortion. I totally did. But then I thought about it and it turned out I was just thirsty.”)
Kennedy’s implication here is that if women only knew how disgusting intact dilation and extraction (the specific procedure banned by the PBABA) is, there’s no way they would do it. Because of that, the state needs to protect them - not their physical health, but their fragile psyches and moral composition - by banning the procedure altogether. Lithwick interprets this as Kennedy sublimating his own vacillations on abortion issues onto American women.
I wonder if something else is going on in this part of the opinion. At first, when I read it, I couldn’t believe that Kennedy managed to hit, in three short paragraphs, so many phrases and implications that would get up my feminist dander. It’s just chock full of patronizing, unsupported junk sociology, and what’s more, it has nothing to do with the rest of the opinion. It’s a complete non-sequitur that does zip to advance Kennedy’s points or any other legal argument. It’s almost like it’s thrown in there to be belittling - which, the more I think about it, is exactly what I suspect Kennedy intended.
I don’t mean to say that Kennedy actually has that low an opinion of women. I really don’t know if he does or not, and I don’t particularly care. What I think he was trying to accomplish with these utterly gratuitous paragraphs was deflection. This part of the opinion is set up like a big, flashing target just waiting to be ripped apart. It’s so easy to do, who could resist? And if you have that target diverting your attention, it’s easier to miss the real problems with upholding the challenged legislation. If Kennedy could get everyone to concentrate on the offending words, maybe we’d all over look the sticks and stones that were actually doing damage to women.
Luckily, Ginsberg, in her dissent, didn’t take the bait. I was very disappointed that she didn’t spend more time on certain issues, like why women ever get this kind of abortion in the first place (because if you understand that, it goes a long way in explaining not only why the procedure may be necessary sometimes but also why a health exception is critical), but I thought she paid the proper amount of attention to the language used by Kennedy.
If I’d had to write a response right after finishing the majority opinion, I would have been so ticked about the choice of words and the portrayal of women that I might have given short shrift to the substantive problems with the decision, but Ginsberg does an okay job of pointing out what’s wrong with the language and moving on to bigger issues. (Of course, even though I thought Ginsberg’s response was fairly measured, apparently others think she was strident and over the top, so believe whoever you want.) After all, for all that it’s eye-catching and for all that commentators like Lithwick have focused on it, the worst-of-the-worst in the picture that Kennedy paints of women takes up a relatively small part of the opinion. It’s the important stuff that he brushes off or ignores altogether, not the homages to motherhood and the bogus concern for women’s emotions that he puts in, that makes this a decision a problem.
