Man, Anthony Kennedy makes my limbs twitch. As Lynn Harris eloquently outlined in Salon on Thursday, the practical implications of Wednesday's Supreme Court decision in Gonzales v. Carhart are potentially grim in the near term (depending on how abortion providers interpret the opinion) and almost certainly grim in the medium term (since antichoice activists are salivating over the avenues opened up by the retrograde ruling). But looking at the text of the majority opinion itself, the philosophical implications are nearly unbearable.
Both Dahlia Lithwick in Slate and an editorial in the New York Times have slammed Justice Kennedy's patronizing protection of dithery abortion seekers. Lithwick was in rare form over the decision, in a snarky piece titled "Dr. Kennedy's Magic Prescription for Indecisive Women." As she notes, Kennedy's opinion wagers that "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." (Lithwick calls our attention to the fact that Kennedy said "infant," not "fetus." All the same to him, I guess.) "In Kennedy's view," Lithwick surmises, "if pregnant women only knew how abhorrent the procedure was, they'd always opt to avoid it. But as Justice Ruth Bader Ginsburg points out in dissent, Kennedy doesn't propose giving women more information about partial-birth abortion procedures. He says it's up to the Congress and the courts to substitute their judgment and ban the procedures altogether."
The Times notes, "This way of thinking, that women are flighty creatures who must be protected by men, reflects notions of a woman's place in the family and under the Constitution that have long been discredited," a point that Justice Ginsburg made in her dissent but that bears repeating. The majority opinion -- or, "atrocious result," as the Times aptly calls it -- "severely eroded the constitutional respect and protection accorded to women and the personal decisions they make about pregnancy and childbirth."
And the more you look at what Wednesday's ruling says about our highest court's view of women's rights and autonomy, the worse it gets. Over at the American Prospect, National Alliance for Pregnant Women prez Lynn Paltrow makes the obvious connection: If fetal rights are more important than maternal rights when it comes to abortion, you can probably argue that fetus trumps mom in other areas, too, like forcing C-sections on reluctant mothers in the interest of fetal health, or penalizing pregnant women for not practicing optimal prenatal care.
Sounds extreme, doesn't it? Well, Paltrow writes, "this argument is already being used to justify court-ordered Cesarean sections in cases where physicians believe that a c-section will prove more beneficial to the fetus (this despite the fact that c-sections constitute major surgery and pose increased health risks to the pregnant woman and in some cases the fetus as well)." As of now, she says, the practice is rare, but "at least one federal court has said that sending police to a woman's home, taking her into custody while in active labor and near delivery, strapping her legs together and her body down to transport her against her will to a hospital, and then forcing her, without access to counsel or court review to undergo major surgery constituted no violation of her civil rights at all. The rationale? If the state can limit women's access to abortions after viability, it can subject her to the lesser state intrusion of insisting on one method of delivery over another."
And, she notes, "comments by Kennedy in a concurring opinion in another Supreme Court case, Ferguson, suggest that he would have no objections to advancing fetal interests by permitting states to 'impose punishment' on a woman who even 'risks' causing harm to the fetus." Of course, isolated cases and comments don't mean these practices are becoming the norm. But if our highest courts are inclined to prioritize fetal rights above maternal rights, who can say these tactics won't become more common?
If there can be said to be a silver lining here (quite a big "if"), it's that the ruling "constitutes the death knell of one of the anti-choice movement's favorite political ruses," as Paltrow writes.
"For years the anti-abortion movement has argued that Roe v. Wade was wrongly decided, in part, because it federalized abortion and took power away from individual states to decide how to address the abortion issue." (Hey there, John McCain!) "In this way, anti-choice activists implicitly reassured the public that even if Roe were overturned, abortion would undoubtedly remain legal at least in states like California, New York, and Washington." (Last year, I remember some anonymous Republicans telling Newsweek that the GOP is just using abortion as a wedge issue and doesn't even want federal restrictions on abortion because "if Roe were overturned, we'd be electing Democrats as far as the eye can see." Well, here's hoping.)
But given that the SCOTUS just upheld a federal abortion ban, Paltrow notes, "there is now little to stand in the way of a federal law banning abortions everywhere if Roe is overturned. In other words, abortion is not really a question of states' rights, but rather of controlling all pregnant women regardless of the state in which they live."
So what now? Well, the need for principled people do donate money and time to groups like the National Network of Abortion Funds and the Haven Coalition has never been greater. It's also a great time to support the newly reintroduced Freedom of Choice Act. Act sponsors Rep. Jerrold Nadler and Sen. Barbara Boxer held a press conference to publicize the act's reintroduction on Thursday. The act states that "although Congress may not create constitutional rights without amending the Constitution, Congress may, where authorized by its enumerated powers and not prohibited by the Constitution, enact legislation to create and secure statutory rights in areas of legitimate national concern." So far, so good: As Nadler notes in a press release on his Web site, "Thirty-four years after Roe, women's rights are under attack as never before: from the states, from the courts, and from the Congress." Sounds like an area of legitimate national concern to me.
Back to the FOCA proposal: "It is the policy of the United States that every woman has the fundamental right to choose to bear a child, to terminate a pregnancy prior to fetal viability, or to terminate a pregnancy after fetal viability when necessary to protect the life or health of the woman." FOCA would further prohibit the government from interfering with these rights, and specifically stipulates that it would apply retroactively to "every Federal, State, and local statute, ordinance, administrative order, decision, policy, practice, or other action adopted, enacted or implemented before, on or after enactment of this Act." Thorough!
Will the high court's upholding of a federal abortion ban galvanize pro-choice activists and sensible moderates into pressing their legislators to pass FOCA by huge margins and, as Nadler puts it, "ensure that women will be able to make these personal decisions safely, legally and privately"? (And in consultation with their physicians, rather than under dictum from groups of male politicians playing doctor?) Again, here's hoping.