i-c65191af1017857cbda470b2af3d4af8-200704201651.jpgJustice Kennedy conceded that “we find no reliable data” on whether plastic surgery in general, or facelifts and hairplugs in particular, causes men emotional harm. But he said it was nonetheless “self-evident” and “unexceptional to conclude” that “some men” who choose cosmetic surgery suffer “regret,” “severe depression,” “loss of esteem” and other ills.
Consequently, he said, the government has a legitimate interest in banning a particularly problematic surgical procedure to prevent men from casually or ill-advisedly making “so grave a choice.”

(Text lightly edited from the coverage of Gonzales v. Carhart, the decision permitting a ban on certain abortion procedures regardless of a woman’s health or a doctor’s best judgment.)

There is little doubt that there are people who have more plastic surgery than they ought to, and there’s no question that “Dave,” whose scalp is featured here, regretted his choice. Would that fact justify banning hair plugs? What else is it permissible to ban based on the potential for future regret and no reliable data suggesting actual harm?

Bear in mind that cosmetic surgery is not all a matter of vanity. People whose hair is destroyed by radiation or illness rely on some of these same procedures, and breast implants are for cancer survivors as well as porn stars, just as recovery from cancer of the jaw or recovery from a fire or an accident can require the same facial surgeries Michael Jackson went through voluntarily.

It is one thing to base a ban on the existence of reliable data about actual risks caused by a procedure. But the majority did not find such data in the record regarding intact dilation and extraction. They did have a record of evidence showing that there are circumstances in which it is the procedure recommended by the American College of Obstetricians and Gynecologists.

This case was not about banning abortion, it is about banning a particular form of abortion, forcing doctors and women to choose different procedures than they otherwise might have. Unlike the Court, I would not presume to know the range of considerations that factor into that decision, nor to second guess those choices. The Court acknowledged that doctors could perform the same abortion by injecting the fetus first to stop the heart, could begin resecting the fetus in utero, etc. There is no basis for thinking those procedures are medically superior, or that women would be less likely to regret (or become depressed or lose esteem because of) one procedure more than another.

A word that keeps cropping up in discussions of the majority decision is “paternalism.” The court has forced itself into a complex decision that belongs in the private hands of a doctor and a woman, and substituted the moral opinions of 5 men for the independent assessments of women and doctors in thousands of different circumstances.

Restricting doctors from considering the health of the woman is especially egregious. Do we want Phill Kline reviewing women’s medical records and making his own assessment of whether a woman’s life was really in danger, or just her health? Does that debate belong in a courtroom? Should Abu Gonzales be allowed to fire prosecutors who don’t toe his ideological line, but accept the medical judgment of doctors? That is the world the Bush justices gave us, and I don’t look forward to it.

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