As I've said before, I'm not a lawyer, I only play one on the internet. But reading Justice Kennedy's majority opinion in Gonzales v. Carhart, the recent decision that upheld the federal D&X ban (aka partial-birth abortion and intact D&E), got me thinking about how this implicates other decisions and other moves in recent history by the Court, the most obvious of which is Lawrence v. Texas, the case that banned sodomy laws, which was based on the same right to privacy articulated in Griswold v. Connecticut, which said that states can't ban contraception, and upheld in Roe v. Wade, which said states can't ban first trimester abortions. It's important to remember how legally enmeshed the gay rights movement and women's rights are when reading a pretty huge decision like this one.
Consider this passage:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. 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 once created and sustained.
The first sentence is a statement that describes the
relationship between a mother and child. It shows that the Court is now in the business of defining family relationships. Even if some mothers see a fetus as just that, or if we're talking about family structures that don't include a mother/child bond, the relationship between a mother and a child is still the ultimate expression of respect for human life
, and it would logically follow that the Court believes that it should be protected above other forms of parent/child bonding, so wait and see what these five heterosexuals think about non-McFamilies. I'm not saying that this will have a legal implication necessarily, but it does provide some insight into just what these justices are thinking.
The fourth sentence of that passage, though, is the really scary one. Does anyone else but me feels like that chips away at an individual's autonomy outside of abortion?
If a woman and her doctor decide that D&X is the best decision for her health, they still can't go with that because the Court has ruled that she might regret it later. Talk about Big Brother! Lawrence was based on the idea that the state needs more of a compelling interest than morality to regulate behavior. So now we have a case that brings up morality's cousin, regret, as a valid reason to decrease autonomy. If someone may come to regret having sex with someone of the same sex, like the good heterosexuals that run ex-gay organizations portend, then the State would now have a valid reason to ban gay sex.
And forget the fact that the Court even admits that it couldn't find anything that proved that women regret abortions, nor could anyone the government got to defend the law, because it's so much easier to just say things than to prove them. Sounds a lot like Paul Cameron to me.
The decision goes on to describe how the state has a legitimate interest in ensuring that women have all the information that they need in making a medical decision (it claims that many OB-GYN's don't give enough information about D&X for women to make a proper decision):
It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State.
Because, you know, it'd be too hard to force doctors to give full information to women considering a D&X. Might as well just ban the entire procedure. (Even though it seems that the religious right loves itself some misinformation
So with those two passages, the Court said: a) It can decide for others what they will regret or not, even if it has no proof, based on an idea of a relationship that everyone might not share; b) If someone may regret something, that person must be ill-informed from the start; and c) If there is a decision that people make that is ill-informed, the state has the right to just ban it altogether. Taken together with several of the justices' contempt for same-sex loving and the fact that some of the moderates may die/retire before Bush is out of office and be replaced by more arch-conservatives, this does not bode well for Lawrence or for future same-sex marriage cases.
Also, considering that this case related directly to medical procedures, what if Congress or a state decided to ban transitioning? The Court could decide, without proof, that people who transition regret it later, that they must have been ill-informed of the consequences of the procedure, and banning it outright is the most straight-forward way of dealing with that lack of information. After hearing some legislators thoughts on T-folk, I wouldn't be surprised if several of our esteemed Supreme Court justices were just itching to ban it.
Also disheartening is the fact that the decision bought into the rhetoric of the religious right. As Justice Ginsburg points out in the dissent:
Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label "abortion doctor." A fetus is described as an "unborn child," and as a "baby," second-trimester, previability abortions are referred to as "late-term,"; and the reasoned medical judgments of highly trained doctors are dismissed as "preferences" motivated by "mere convenience."
These are the same people that will be decided cases in the future that relate directly to queer issues.
You can tell where they're coming from when Justices Thomas and Scalia concur by saying:
I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade has no basis in the Constitution.
In other words, there is no right to privacy upon which Lawrence
is based. While we knew where they stood before this case on the right to privacy, we now know that they have two new buddies, Justices Roberts and Alito, and only need one swing to take Lawrence
out. The rise of such conservative judicial activism wasn't lost on Ginsburg, though:
In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court's defense of the statute provides no saving explanation. In candor, the Act, and the Court's defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court.
All the more reason that we need a Democratic president in 2008. It was the conventional wisdom that half the Supreme Court would leave during Bush's first term, and then it was passed around again ever more strongly in 2004. The other centrist judges and Ginsburg have been dolls to hold out on retiring, but who knows if they'll last until 2013.
(Again, I'm not a lawyer, I just have the organic knowledge of judicial system that many queer people have had to acquire as our bodies and minds have been made and unmade the property of the legal system and the government. If you really are a lawyer and found something that's wrong here, leave a comment and I'll update and give props. ~Alex)