It was a development that stunned abortion rights advocates and that represents a major departure from how the court has framed the abortion issue for the past 34 years. The question on the day after the justices voted 5 to 4 to uphold the federal Partial-Birth Abortion Ban Act is where the court goes from here.
Regulating abortion for the sake of a woman’s health has been part of the court’s consideration since Roe v. Wade in 1973; Justice Harry A. Blackmun wrote for the court then that “the state does have an important and legitimate interest in preserving and protecting the health of the pregnant woman.”
Reflecting the court’s view that illegal abortions were a serious public health problem, the opinion gave examples of permissible regulations, like requiring doctors to be properly licensed. After fetal viability, the court said in Roe v. Wade, abortion can be banned except when ending a pregnancy is necessary for the sake of a woman’s life or health.
But never until Wednesday had the court held that an abortion procedure could be prohibited because the procedure itself, not the pregnancy, threatened a woman’s health — mental health, in this case, and moral health as well. In his majority opinion, Justice Anthony M. Kennedy suggested that a pregnant woman who chooses abortion falls away from true womanhood.
“Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” he said.
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.”
The South Dakota Legislature has also enacted an “informed consent” law requiring doctors to tell a patient seeking an abortion that “the pregnant woman has an existing relationship” with the “unborn human being” in her uterus. Whether the state can require such a script is a question that was argued last week before the federal appeals court in St. Louis. The language would be unlikely to raise alarms at the Supreme Court, based on the majority opinion on Wednesday.
On his blog, Balkinization, Prof. Jack M. Balkin of Yale Law School defined the message behind what he called the “new paternalism”: “Either a woman is crazy when she undergoes an abortion, or she will become crazy later on.”
Despite the activity in the states, the anti-abortion movement’s new focus remained largely under the radar until it emerged full-blown in Justice Kennedy’s opinion. As evidence that “some women come to regret their choice to abort the infant life they once created and sustained,” Justice Kennedy cited a brief filed in the case by the Justice Foundation, an anti-abortion group that runs a Web site and telephone help line for women “hurting from abortion.” The brief contained affidavits from 180 such women, describing feelings of shame, guilt and depression.
Justice Ruth Bader Ginsburg’s dissenting opinion contained a quotation: “Our obligation is to define the liberty of all, not to mandate our own moral code.” The line had appeared twice before in Supreme Court opinions, most recently four years ago, in Justice Kennedy’s majority opinion that struck down the Texas sodomy law in Lawrence v. Texas and overturned the 1986 anti-gay-rights precedent, Bowers v. Hardwick.
It appeared for the first time 11 years before that, in Planned Parenthood v. Casey, the decision that reaffirmed the right to abortion with an unusual joint opinion; the line is in the portion of the opinion usually attributed to Justice Kennedy.
The question that combatants on both sides of the abortion wars are now asking themselves is, which is the Anthony Kennedy for the Roberts court: the author of that sentiment, or the one who, on Wednesday, left a familiar shore, embarking with a narrow majority on a journey to an uncertain destination.