Breaking: Supreme Court upholds federal ban on partial-birth abortion; Update: Ginsburg cries paternalism; Update: Decision was correct, says Rudy

posted at 10:27 am on April 18, 2007 by Allahpundit

Anthony Kennedy wrote the majority opinion? This is like Darth Vader throwing the Emperor down the well at the end of ROTJ.

Stand by for updates.

Update: Lyle Denniston notes that the Court struck down a state ban on partial-birth abortion in 2000. Why’d they change their mind on the federal law? Because Sam Alito has replaced Sandra Day O’Connor, who voted consistently with the liberal wing in abortion cases. It’s the first time the Court has upheld a total ban on a specific procedure, says Denniston.

Update: By way of background, Kennedy co-wrote the famous plurality opinion in Planned Parenthood v. Casey in 1992 that reaffirmed Roe v. Wade. At the time the Court had seven Republican appointees, so it was widely expected that Roe would be overturned.

If the Chief Justice is in the majority, as Roberts was here, it falls to him to decide who’s responsible for writing the majority opinion. Kennedy probably got the call for two reasons: one, having an author of the Casey opinion put his name on today’s decision lends it a bit of extra authority, and two, since Kennedy is a fencesitter on this issue, Roberts wants to do what little he can to “lock him in” to anti-abortion precedent by making him as personally invested in it as possible.

Update: Here’s the opinion. The gist of the decision is that the federal ban is constitutional even thought it doesn’t provide an exception for the health of the mother. The AP has a few excerpts, but omits the juiciest one: where Ruth Bader Ginsburg, writing in dissent, accuses the five men in the majority of sexism.

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

This way of thinking reflects ancient notions about women’s place in the family and under the Constitution— ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, 208 U. S. 412, 422–423 (1908) (“protective” legislation imposing hours-of-work limitations on women only held permissible in view of women’s “physical structure and a proper discharge of her maternal funct[ion]”); Bradwell v. State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring) (“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.”), with United States v. Virginia, 518 U. S. 515, 533, 542, n. 12 (1996) (State may not rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women; “[s]uch judgments have . . . impeded . . . women’s progress toward full citizenship stature throughout our Nation’s history”); Califano v. Goldfarb, 430 U. S. 199, 207 (1977) (gender-based
Social Security classification rejected because it rested on archaic and overbroad generalizations” “such as assumptions as to [women’s] dependency” (internal quotation marks omitted)).

Though today’s majority may regard women’s feelings on the matter as “self-evident,” this Court has repeatedly confirmed that “[t]he destiny of the woman must be shaped . . . on her own conception of her spiritual imperatives and her place in society.

All citations have been omitted except in the second paragraph, so that you can see just what she’s accusing them of. The Bradwell case in particular is notorious in constitutional law for its crudely paternalistic view towards women, as evinced in the quote Ginsburg provides. Linking the majority here to that decision is the jurisprudential equivalent of flipping them the bird.

Update: Thinking of the political consequences here, is Giuliani the big loser? He said in February that he supports a ban on partial-birth abortion — so long as there’s a provision for the health of the mother. Does that mean he doesn’t support this? Because a lot of conservatives are going to be happy today, and not so happy with Rudy if he’s not sharing their happiness. Meanwhile, McCain’s milkin’ it.

Update: Rudy discovers nuance!

Update: As Ace notes, Thomas sided with the majority in upholding the ban even though he hints that he thinks the statute is unconstitutional as a violation of the Commerce Clause.


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