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SUPPORTING REPRODUCTIVE RIGHTS IS THE NEW CONTRARIANISM. Christine Stansell's new article about Carhart II is very good. The puzzle it presents is how on earth it made it into the New Republic -- perhaps Jeffrey Rosen and Ben Wittes were away on a cruise (high contrarianism on the high seas!) or something. Anyway, it's a good analysis of the problems with the decision:
Kennedy's opinion undermines constitutional protections for a woman's right to make decisions established in Roe v. Wade. And, just as disturbingly, it summons up assumptions about women that go back to discredited paternalistic decisions of the Supreme Court. "It's only a couple of paragraphs in the decision," notes Yale Law School Professor Reva Siegel. "But it's alarming." In Kennedy's words, one hears the echo of the anti-choice movement's new emphasis on abortion as a de facto violation of something at the very core of women's being. Medical technicalities take up the bulk of the Court's majority opinion, but the reasoning concerns the nature of women and the integrity of their moral choices -- an implicit rejection of the most mainstream tenets of modern feminism.And the Court accepting anti-choice junk science is going to have bad consequences when it comes to future applications of the "undue" burden standard. I also like the fact that Stansell's article reminds us of the great success the pro-life movement had at stopping state legislative refoms in its tracks, which far too many people forget. More about that later today.
Legal abortion owes an enormous debt to the women's movement; without question, feminists were critical in the last stages of the push. But the idea of abortion as a necessity for women's well-being first came from liberals and moderates in the 1960s and even predated feminist arguments for a woman's right to choose. For nearly 50 years, Americans have been able to separate the more abstract arguments about morality and women's rights from the very concrete issues of women's integrity and their health. Kennedy repudiates this understanding by reviving antique views of women as well as endorsing the new pseudoscience of the anti-choice movement.
--Scott Lemieux
COMMENTS (7)
I just skimmed the TNR piece & its comments, and was reminded why I can't bring myself to subscribe-- those guys (and they're mostly guys) are barely Democrats, and they're great examples of plausible-denial misogyny ("I love & respect women, BUT not when they behave in ways of which I disapprove," etc.). I really like commenters efforts to completely separate anti-choice ideology from all of the other sexual & reproductive issues that indicate an anti-sex worldview... for them, it is ridiculous to note connections between opposition to abortion and denying sex ed, birth control, etc. The fact that they all have to do with human sexuality, on the agin-it side of the fence, has nothing to do with abortion. Nope, not a thing.
Sigh...
Posted by: latts | May 14, 2007 9:50 AM
Scott, I think I mentioned this in speculation about how Carhart II would turn out a year ago (in TAPPED comments), but I wonder if the Court's decision to accept findings of facts by Congress that are less than, shall we say, *factual*, marks a newfound respect for the role of the legislature ("We won't second-guess their fact-finding because it's not our job.") or whether it'll be a one-off (a la Bush v. Gore), or whether it'll be one of those IOKIYAR things, by which facts found by *conservative* entities are accorded respect by five justices, and facts found by non-conservative entities are subject to more skepticism.
I'm not going to hold my breath waiting for intellectual consistency or deviation from the outcome-based jurisprudence of this Court, though...
Posted by: Chris | May 14, 2007 10:50 AM
Dworkin has a good article (actually, very good) in the NY Review of Books on the decision, too. I don't think it's online yet.
Posted by: Goldberg | May 14, 2007 11:03 AM
Chris--I think you know the answer to that...
Posted by: Scott Lemieux | May 14, 2007 12:00 PM
People should lay off Justice Kennedy. He did everyone a huge, huge favor. When they successfully re-criminalize it, some sympathetic judge can pull out the insanity defense.
Good show, old man. Way to go.
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