In response to the recent Supreme Court decision upholding the Partial-Birth Abortion Ban Act, Congress has re-introduced the Freedom of Choice Act, or FOCA. Intended to codify the constitutional right to abortion, FOCA is a welcome effort to undo a series of federal and state encroachments on access to abortion that have built up over the last decade or so to the point where, for many women, abortion has become completely inaccessible despite the continuing validity of Roe v. Wade.
While FOCA would go a long way toward insuring that women in the United States can obtain abortions as early as possible, as safely as possible, and with as little harassment as possible, FOCA unfortunately cannot undo one especially pernicious aspect of the Court's ruling.
With his opinion in Gonzalez v. Carhart, Justice Anthony Kennedy utterly changed the course of abortion jurisprudence in this country. Among the reasons he cited for upholding the ban on a type of midterm abortion procedure was the concern that some women may "come to regret their choice to abort the infant life they once created and sustained.... Severe depression and loss of self-esteem can follow."
Although he could find "no reliable data to measure the phenomenon," nor did he make an effort to explain why a reaction to this particular procedure would be more severe than to any other abortion procedure, he deemed his conclusion "unexceptional."
I beg to differ. Indeed, it is one of the most exceptional and astounding bases ever articulated for allowing the government to encroach on what was heretofore a fundamental right. Since when do we base the free exercise of our rights on whether we may later regret having done so?
I have the right to defend myself in court. What if I get convicted and regret not hiring an attorney? Will Justice Kennedy protect me from that mistake too?
Clearly, Justice Kennedy has bought into every single stereotype that the "prolife" movement has painted about the women who have abortions--that women who want abortions are selfish; that they don't fully understand the consequences of their decision; that it is unnatural for a woman to want an abortion; that they are a different breed of women from those who choose motherhood; that they will be traumatized by having an abortion; that they don't have the proper respect for human life.
"Respect for human life," Justice Kennedy writes, "finds an ultimate expression in the bond of love the mother has for her child." (Sorry, dads, your love just can't measure up). Justice Kennedy's language reveals a striking dichotomy. On the one hand, if a mother's love is so strong, then presumably she is in the best position to make decisions about what her family needs. On the other hand, she might make the wrong decision, and so the government must be able to step in and protect her from herself.
There are many things I think women will come to regret, but not the ones Justice Kennedy fears. They will regret that their doctors are no longer allowed to use an abortion method that can reduce the risks of hemorrhaging, uterine perforation, infection and infertility; that women carrying malformed fetuses will no longer be able to have an abortion procedure that lets them hold their child and mourn it; that doctors will no longer feel free to develop new techniques that might be even safer for women; that doctors will have to modify the techniques that aren't banned to ensure they won't be prosecuted; that women whose health is endangered by new abortion restrictions will have to fight them on a case-by-case basis, when a remedy will likely come too late.
But most of all, I think women will regret that a paternalistic government has taken away their right to make their own decisions about their family composition and their medical care. Because ultimately, isn't freedom the right to make decisions for yourself--good or bad? Wouldn't you prefer to regret your own mistakes rather than those of the government?
That is precisely what freedom of choice is all about.