Supremes Know BestJustice Kennedy's opinion that a woman's right to have an abortion should be limited because, in some cases, that decision is regretted harkens to a more primitive time and the Supreme Court's sometimes ugly legacy on women's rights.
BOSTON — Let us return to that wonderful yesterday when the United States Supreme Court ruled that Myra Bradwell couldn’t be two things at the same time: a lawyer and a woman.
On that occasion, Justice Joseph P. Bradley left a perfect entry for the Father Knows Best time capsule, circa 1873. “Man is, or should be, woman’s protector and defender,” he intoned. “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”
Bradley went on to explain why this decision couldn’t be in the hands of the woman. “The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.” Mrs. Bradwell had to be protected from her own misguided and unwomanly ambitions … by men.
Justice Bradley did not put the pater in paternalism. But when you bring his 19th-century gem into the light of our 21st-century lives, it glistens like a genuine relic. Want to veto your wife’s decisions on the grounds that you know what’s best for her? Well, don’t try this at home, those days are over. Or are they?
There was a small relic hidden in the Supreme Court’s recent decision upholding the ban on so-called partial-birth abortions. For the first time, Justice Anthony Kennedy justified banning an abortion procedure not only to protect the fetus but to protect the woman.
“While we find no reliable data to measure the phenomenon,” he admitted, “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Reliable data or not, the “regrets” of these women became another reason to ban a procedure for all women. The state could protect her, the justice implied, from her own ill-informed, misguided decision.
For this argument, Kennedy reached down into the legal briefs of anti-abortion activists who have been honing a political strategy based on the idea that abortion hurts women. They’ve tried to turn the pro-choice position on its head, declaring that abortion opponents are the ones who truly care about women’s health.
The abortion-hurts-women argument had its first incarnation in repeatedly debunked attempts to link abortion to breast cancer. Now anti-abortionists have fabricated an entire mental illness they name post-abortion syndrome, which has been debunked by study after study. Nevertheless it reappears in testimonies from women whose stories about their trauma are spread throughout state legislatures considering all sorts of new restrictions.
Abortion is inherently harmful to women, their argument goes, because it violates a woman’s true “nature,” her role as a mother. This would be familiar stuff to Justice Bradley, but Justice Kennedy also wrote about “the bond of love the mother has for her child,” suggesting that any true woman would suffer.
I don’t deny that some women feel regret as well as relief after an abortion. More than 30 million American women have had abortions since Roe v. Wade. Each unwanted pregnancy comes with its own story of a failed contraceptive or failed relationship, of an economic or a health crisis. Some women do indeed feel coerced by men or by parents. Surely thousands have suffered from the crisis they faced and the decision they had to make.
But to this range of individual dilemmas, the pro-life argument offers only one solution: Criminalize abortion. To this range of life stories, it offers only one kind of “help”: Take the decision out of her hands. Now their argument has been folded into a Supreme Court decision. As Yale Law School’s Reva Siegel said, “The opinion imagines that the state knows better than women what they really want and need in matters of motherhood.”
It’s no wonder that Justice Ruth Ginsburg, the only woman on the court and a lawyer who made her name overturning laws based on stereotypes, chided Kennedy for reverting to those stereotypes. She reminded him how far the court had come in defending a woman’s right to shape her own destiny.
I don’t believe that Justice Kennedy is the clone of Justice Bradley. In other abortion and gay rights cases, he’s agreed that the court’s obligation is “to define the liberty of all, not to mandate our own moral code.” But this time he’s stuck his toe into some very treacherous waters.
As Siegel said, “If they regulate all women on the assumption that they don’t know their own interests, that they lack the ability to make their own decisions, we’re back in the 19th century.”
It’s amazing how quickly the current can shift and the waters flow … backward.
Ellen Goodman’s e-mail address is ellengoodman(at symbol)globe.com.
© 2007, Washington Post Writers GroupWait, before you go…
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