Misjudging Women

Misjudging Women

In Gonzalez v. Carhart, Justice Anthony Kennedy has utterly changed the course of abortion jurisprudence.

Copy Link
Facebook
X (Twitter)
Bluesky
Pocket
Email

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.

Become a Sustaining Donor This September

Between the reemergence of right-wing red-baiting and Donald Trump’s use of the chilling National Security Presidential Memorandum–7 to criminalize left political organizing, we’re seeing McCarthyism reborn before our eyes.

This assault on democracy cannot be ignored or wished away. Resisting it requires bravery in the face of threats and repression, a steadfast commitment to the truth, and the unwavering belief that we can—and will—overcome this darkness.

We must have an independent media that sets the record straight, unearths corruption and abuses of power, and advances a politics of justice and dignity for all if we’re to win this fight.

That’s why I’m writing to you today. This September, The Nation needs to add 100 monthly donors to sustain our progressive journalism. Your contribution makes the next investigative report, the next truth-speaking column, and the next pathbreaking essay all possible. 

I hope you’ll support our work with a recurring donation today. If you donate $10 or more a month, we’ll send you a brand new “Hands Off the Free Press!” sticker to recognise your commitment to our cause. Please, donate today. 

Onward,

Katrina vanden Heuvel
Editor and Publisher, The Nation

Ad Policy
x