Court Knows Best

By Ruth Marcus
Wednesday, April 25, 2007

How nice of Justice Kennedy to look out for me.

Goodness knows, if I didn't have the justice and his buddies hovering, I might make a terrible mistake. I mean, I'm so impulsive and muddle-headed, I sometimes don't know what's in my own best interest.

Luckily, the Supreme Court does.

I'm referring, of course, to the court's insulting throwback of a ruling upholding the federal ban on the procedure known as "partial birth abortion."

The 5 to 4 decision was alarming for a number of reasons.

First, the majority's unstated but unmistakable willingness to dispense with inconvenient precedent. As nominees, the president's two choices for the high court treated us to pious pronouncements about their respect for the rule of law.

But they didn't flinch in overturning, in all but name, a seven-year-old case in which a differently constituted court, considering a nearly identical statute, came out the other way. For all that talk about impartially calling balls and strikes, Mr. Chief Justice, it turns out that it matters a whole lot who the umpires are.

Second, the Father Court Knows Best tone of Anthony Kennedy's majority opinion. "Respect for human life finds an ultimate expression in the bond of love the mother has for her child," Kennedy intoned. This is one of those sentences about women's essential natures that are invariably followed by an explanation of why the right at stake needs to be limited. For the woman's own good, of course.

Kennedy continues: "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." No reliable data? No problem!

And I thought women were the ones who were supposed to be bad at science.

"It is self-evident," he adds, "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."

Therefore, "the State" can step in to assert the "ethical and moral concerns that justify a special prohibition." In other words, it can protect women from the consequences they may or may not experience as a result of the ignorance from which they may or may not be suffering.

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