On Wednesday, when the Supreme Court upheld a federal ban on “partial-birth abortions” in its 5-4 decision on Gonzalez v. Carhart, it dealt a potentially huge setback to US reproductive freedoms. Although intact dilation and extraction makes up only a small subset of all abortions, this ruling is significant in that it explicitly does not allow for exceptions when the mother’s health is at risk. The decision is also notable in its lack of adherence to Court precedence, its lack of reliance on solid legal reasoning, and its ignorance of medical opinion. Much can and should be written about this (and the SCOTUSblog offers a nice summary of some of the mainstream media coverage), but a different aspect of this fiasco caught my eye.
Actually, it caught the eye of my friend and colleague Beth Pearson, who commented to me about the overbearing strain of paternalism that seems to underly the Court’s decision. Beth–who is in the Development Studies Department at Oxford and studies the impact of female parliamentarians in Rwanda–is well placed to pick up on these issues, and she sparked a discussion on the issue that led to this post.
While it is a sad state of affairs that we still, in the year 2007, live in a markedly paternalistic society, I recognize that this is a fact of life that will take some time to change. Still, the current Supreme Court decision is notable in its combination of relying heavily on such a paternalistic line of reasoning while eschewing basic legal scholarship in the process. The New York Times picks up on this as well:
In describing the federal law’s justifications, Justice Kennedy said that banning the procedure was in fact good for women, protecting them against terminating their pregnancies by a method they might not fully understand in advance and would come to regret later.
“Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” he said, adding: “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.”
Justice Ginsburg objected vehemently that “this way of thinking reflects ancient notions of women’s place in the family and under the Constitution — ideas that have long since been discredited.”
She cited century-old Supreme Court cases that upheld a paternalistic view of women’s place in society and contrasted those with more recent cases, including one she successfully argued to the court in 1977 and one in which she wrote the majority opinion in 1996, that rejected “archaic and overbroad generalizations” and assumptions about women’s inherent dependency.
One law professor, Martin S. Lederman of Georgetown University, commented after reading Justice Ginsburg’s response on this point that Justice Kennedy’s opinion “was an attack on her entire life’s work.”
In her opinion, Justice Ginsburg said the majority had provided only “flimsy and transparent justifications” for upholding the law, which she noted “saves not a single fetus from destruction” by banning a single method of abortion. “One wonders how long a line that saves no fetus from destruction will hold in face of the court’s ‘moral concerns,’ ” she said.
Justice Kennedy’s decision conjures up the outdated notion that it is up to these strong and composed men of the government to protect these irrational and emotional creatures called women from making decisions that they are incapable of fully comprehending. This absurd line of reasoning has no business anywhere, and especially not in a Supreme Court decision.
Interestingly, these themes extend beyond the decision itself and into the reactions to it. The AP has compiled a list of soundbite reactions from various prominent individuals. The most noticeable differences are those between the pro-choice Democrats and the anti-choice Republicans. Even within these camps, though, some surprising differences emerge. Take, for example, the reactions by Democratic Senators Barack Obama and Hillary Clinton, both currently campaigning for the 2008 Democratic presidential nomination:
”I strongly disagree with today’s Supreme Court ruling, which dramatically departs from previous precedents safeguarding the health of pregnant women.” — Sen. Barack Obama, D-Ill.
”This decision marks a dramatic departure from four decades of Supreme Court rulings that upheld a woman’s right to choose and recognized the importance of women’s health.” — Sen. Hillary Rodham Clinton, D-N.Y.
(Each candidate’s full statement can be read on his or her website.)
Both Obama and Clinton basically say the same thing. They disagree with the Court’s decision, and it is a decision that is not in line with Court precedent and will have negative implications for women’s health. Yet, there is one striking difference between the two. According to Obama, this decision reduces the ability of the government to safeguard women’s health as it should. Clinton, on the other hand, notes that this decision indicates that the government does not fully recognize women’s health.
Each statement implies a different relationship between women and their government, and one is slightly more paternalistic. Still, both candidates are pro-choice here, and what Obama says doesn’t even approach the line that Kennedy crosses in his decision. By using the same rhetoric as the opponents of abortion use, Kennedy displays the same sort of paternalism and disregard for the interests of women that the anti-abortion movement always has.