Criticisms of Gonzales v. Carhart, the Supreme Court's decision to allow a ban on partial-birth abortion, sound awfully familiar. But surprisingly, they're coming from the pro-choice side.
When Congress passed the ban in 2003, abortion supporters complained that it ignored maternal health, including mental and emotional health. Pro-lifers replied that such an exemption would be interpreted so broadly that it would negate the ban entirely. It's the proverbial truck-sized loophole.
Now pro-choicers are complaining that Justice Anthony Kennedy's majority opinion in Carhart puts too much emphasis on mental and emotional health.
"Some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow," Kennedy wrote. "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 once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."
Critics attacked Kennedy as paternalistic and worried that such a concern potentially negates a woman's right to abortion entirely. If Congress can ban the partial-birth procedure in order to protect women from potential grief, anguish, and sorrow, they asked, can't it use the same logic to ban other abortions? There's that truck-sized loophole again, but now the truck is driving the other direction.
In her dissent, Justice Ruth Bader Ginsburg similarly criticized Kennedy's ruling: "This way of thinking reflects ancient notions about women's place in the family and under the Constitutionideas that have ...1