Paternalism raises its ugly head: thoughts on the Supreme Court's anti-abortion decision

By Nancy Jane Moore

Margaret Atwood's novel The Handmaid's Tale -- the story of a bleak totalitarian future run by right wing religious fundamentalists in which women have virtually no rights -- first appeared about 20 years ago. It sent chills up my spine when I read it, but I didn't take it all that seriously as predictive fiction.

After all, even if we were moving into the so-called post-feminist era, U.S. women at least had secured many of the rights we were fighting for. Most importantly, we had gained control over reproduction -- an essential element in giving women the freedom to conduct their lives on their own terms.

I'm not just referring to Roe v. Wade and the legal right to abortion. There were also medical advances -- the significant decline in maternal mortality as well as the development of the pill and other more reliable forms of birth control. And before the 1973 Roe ruling, there was the 1965 Supreme Court decision in Griswold v. Connecticut, overturning a law that prohibited dispensing contraception, and the 1972 decision in Baird v. Eisenstadt, which threw out a Massachusetts law that prohibited giving contraceptives to the unmarried.

Many states have tried to chip away at the rights set out in Roe, but until April 18, no one had been successful. On that date, by a 5-4 vote, the Supreme Court disregarded precedent while pretending not to overturn any previous rulings and upheld a law prohibiting a specific abortion procedure despite the fact that it contained no exception for the health of the woman and did not turn on whether or not the fetus was viable outside the womb.

In other words, the court started us back down the road to those days when the future, potential life of a fetus was valued over the here and now life of a woman.

The law in question was called the Partial-Birth Abortion Ban Act by Congress, which tended under its then-Republican majority to apply Orwellian terms in naming laws. It actually refers to a procedure called Intact Dilation and Evacuation -- Intact D&E. It is certainly serious surgery, but according to lower court testimony, there are times when it is the safest procedure for a woman. Interestingly, two federal trial courts and two courts of appeal both found the law unconstitutional.

But five male lawyers on the Supreme Court decided that they and Congress had a better understanding of medical procedures than doctors. What's worse, they decided they had a better take on moral decisions than the women of this country. In the court's opinion, Justice Kennedy wrote:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. ... While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.

He goes on to suggest that doctors don't give women the whole truth, implying that the court has to protect women from their doctors.

I could deconstruct the decision, but fortunately the court's lone woman member, Justice Ruth Bader Ginsburg (pictured above) has done it in detail in her thorough and blistering dissent. (Scroll down to page 49 of this pdf of the decision.)

Here are a few of Justice Ginsburg's observations:

Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.
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Similarly, Congress found that "[t]here is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures." ... But the congressional record includes letters from numerous individual physicians stating that pregnant women’s health would be jeopardized under the Act, as well as statements from nine professional associations, including ACOG, the American Public Health Association, and the California Medical Association, attesting that intact D&E carries meaningful safety advantages over other methods.
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In this insistence, the Court brushes under the rug the District Courts' well-supported findings that the physicians who testified that intact D&E is never necessary to preserve the health of a woman had slim authority for their opinions. They had no training for, or personal experience with, the intact D&E procedure, and many performed abortions only on rare occasions.
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Ultimately, the Court admits that "moral concerns" are at work, concerns that could yield prohibitions on any abortion. ... Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent.
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Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem."
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This way of thinking reflects ancient notions about women’s place in the family and under the Constitution -- ideas that have long since been discredited.
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Though today’s majority may regard women’s feelings on the matter as "self-evident," ... this Court has repeatedly confirmed that "[t]he destiny of the woman must be shaped . . . on her own conception of her spiritual imperatives and her place in society."
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Instead of drawing the line at viability, the Court refers to Congress' purpose to differentiate "abortion and infanticide" based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed.
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In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court's defense of the statute provides no saving explanation. In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court -- and with increasing comprehension of its centrality to women’s lives.

Balkinization also has some fine posts on the subject, including this one from one of the lawyers who argued against the law at the Supreme Court.

Fortunately, the religious right has had less success with its attacks on the First Amendment: The Handmaid's Tale is still in print. It's probably time to read it again.