NEW PATERNALISM. I finally reached my friend and coauthor Reva Siegel, who has long seen in her crystal ball up at Yale Law School what only appeared to the rest of the world in yesterday�s �partial birth� opinion from SCOTUS: that the anti-abortion movement reframed its arguments against abortion in ways that seem to protect women while in fact actually constraining them. This is a key new turn in the anti-abortion strategy: to argue that women are natural mothers who would not naturally choose abortion, and therefore need protection from the option. (This strategy is laid out brilliantly in Reva�s newly published lecture.)
Writes Justice Kennedy, indulging in some stereotypes straight out of the antis� new playbook:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. � 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 created and sustain. See Brief for Sandra Cano et al. as Amici Curiae in No. 05.380, pp. 22.24. Severe depression and loss of esteem can follow.
While it was good of the justice to acknowledge �no reliable data,� he failed to acknowledge that the sources on which he does base these conclusions are equally unreliable. The brief for Sandra Cano, the "Doe" in the Roe companion case Doe v. Bolton, he cites is a collection of affidavits put together not by researchers looking at the effects of abortion but by the vehemently anti-abortion lawyers representing Cano. Her lawyers run the Texas-based Justice Foundation, which collected affidavits of women who regret their abortions in a project specifically aimed at attacking abortion in the courts. The project, called Operation Outcry, has affidavit forms on its site (also available through some crisis pregnancy centers) with the following introduction: �By providing a sworn statement, called an affidavit, you story can be used as evidence in legal cases.� (They also have an affidavit for men.) A representative sample answering an unbiased question this is not.
The problem is, these affidavits along with some very shoddy pseudo science, have made there way to some very significant places including several state legislatures -- most famously South Dakota -- considering abortion bans and several lower courts considering informed consent cases. Now Kennedy has bought their narrative hook, line, and sinker, writing that it is �self-evident� that �a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she did not know.� His twisted remedy, though, is not to ensure that a woman has adequate information; it�s to ensure that she has no option. Her moral judgment is completely eviscerated. �This is,� writes Jack Balkin, �the New Paternalism that is now central to the rhetoric of the pro-life movement. Either a woman is crazy when she undergoes an abortion, or she will become crazy later on.�
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