Mandating a moral code

What is so disturbing about Justice Kennedy's majority opinion in the late-term abortion case isn't simply that the Supreme Court now believes itself capable of making medical decisions. After all, we've seen plenty of that in their decisions regarding medical marijuana, finding that federal law trumps a doctor's duty to treat his or her patient. No, more disturbing still is that conservative talking points of dubious, if not laughable, scientific accuracy are finding their way into Supreme Court decisions.

Justice Kennedy conceded that “we find no reliable data” on whether abortion in general, or the procedure prohibited by the Partial-Birth Abortion Ban Act, causes women emotional harm. But he said it was nonetheless “self-evident” and “unexceptional to conclude” that “some women” who choose to terminate their pregnancies suffer “regret,” “severe depression,” “loss of esteem” and other ills.

Consequently, he said, the government has a legitimate interest in banning a particularly problematic abortion procedure to prevent women from casually or ill-advisedly making “so grave a choice.”

If “a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term,” Justice Kennedy continued, that outcome will advance “the state’s interest in respect for life.”

The shift in the court’s discourse was “enormous,” said Prof. Reva B. Siegel of Yale Law School. It was, she said, “beyond Alice in Wonderland: criminalize abortion to protect women.”

In an article to be published shortly in The University of Illinois Law Review, Professor Siegel traces the migration of the notion of abortion’s harm to women from internal strategy sessions of the anti-abortion movement in the 1990s to the formation of legal arguments and public policy.

The South Dakota abortion ban that the state’s voters repudiated in November was a prime example of that strategy coming at least temporarily to fruition. Entitled “South Dakota Women’s Health and Human Life Protection Act,” the ban included as an official legislative purpose the protection of “the mother’s fundamental natural intrinsic right to a relationship with her child.”

This will be a text book case on how what would have been considered not long ago as far gone wingnuttery enters into mainstream discourse.

For more on a mother's even more intrinsic right to her health, Brian Leher discussed the decision with an impassioned Dr. Steven Goldstein, professor of obstetrics and gynecology (or, as Justice Kennedy would condescendingly and abusively put it, "an abortion provider") at NYU medical center.