Hetero Justice Ginsburg’s Dissent
posted by April 18 at 12:05 PMon
Today, as Dan noted earlier, five men decided that even a nonviable fetus has more rights than a living woman. In a 5-4 decision, the Supreme Court upheld the first total ban on an abortion procedure with no exceptions for a woman’s life or health. Most so-called “partial birth abortions” are performed because a fetus is terminally ill, or to save the life of the woman. The only woman on the court, Ruth Bader Ginsburg, wrote the dissent:
Today’s decision is alarming. … 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… between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a womans health.
There was a time, not so long ago, when women were regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution. Those views, this Court made clear in Casey, are no longer consistent with our understanding of the family, the individual, or the Constitution. Women, it is now acknowledged, have the talent, capacity, and right to participate equally in the economic and social life of the Nation. Their ability to realize their full potential, the Court recognized, is intimately connected to their ability to control their reproductive lives. Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.
In keeping with this comprehension of the right to reproductive choice, the Court has consistently required that laws regulating abortion, at any stage of pregnancy and in
all cases, safeguard a woman’s health. We have thus ruled that a State must avoid subjecting women to health risks not only where the pregnancy itself creates danger, but also where state regulation forces women to resort to less safe methods of abortion.
The Court offers flimsy and transparent justifications for upholding a nationwide ban on intact D&E sans any exception to safeguard a women’s health.
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. (Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.)
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. Because of women’s fragile emotional state and because of the bond of love the mother has for her child, the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.
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. …
Though today’s majority may regard women’s feelings on the matter as self-evident, ante, at 29, 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.
One wonders how long a line that saves no fetus from destruction will hold in face of the Court’s moral concerns. The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label abortion doctor. A fetus is described as an unborn child, and as a baby, previability abortions are referred to as late-term, and the reasoned medical judgments of highly trained doctors are dismissed as preferences motivated by mere convenience.
In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Courts 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.