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.

But if Congress can ban the partial-birth procedure, why can't it express its "ethical and moral concerns" with the standard procedure for second-trimester abortions, dilation and evacuation? As Kennedy notes, this procedure, in which the fetus is dismembered before being removed, is "in some respects as brutal, if not more," as the partial-birth procedure.

Why can't Congress impose its ethical views by requiring any woman seeking an abortion to wait a few weeks, watch a sonogram of her developing fetus, listen to an antiabortion lecture?

And so much, by the way, for the conservatives' hymns to federalism. Now a state that wants to allow the procedure is barred from doing so -- even if its lawmakers believe that would best protect the health of women there.

Third, and most chilling, was the court's willingness to subordinate the health of individual women, and the individual judgment of physicians, to the moral whims of the majority.

The partial-birth procedure is used in a tiny fraction of abortions. But the American College of Obstetricians and Gynecologists, which represents 90 percent of the country's board-certified OB-GYNs, told the court that the partial-birth procedure could be especially useful for some women, especially those with serious illnesses such as heart disease, bleeding disorders and weakened immune systems.

The advantages of the procedure, including lower risk of perforating the uterus or leaving fetal tissue behind, and shorter time under anesthesia, could avert consequences such as "massive hemorrhaging, serious infection, and subsequent infertility."

The court ignored that, as it did the similar conclusions of the three trial courts that heard evidence about the procedure. Instead, it announced that the law could stand because "medical uncertainty persists," and because those challenging the restriction had not shown that it would be unconstitutional in "a large fraction of relevant cases."

But as Justice Ruth Bader Ginsburg noted in her dissent, the point of a health exception is precisely for exceptional cases. Indeed, Kennedy seems to be as weak at math as he is at science.

"There is . . . no fraction," Ginsburg patiently explained, "because the numerator and denominator are the same: The health exception reaches only those cases where a woman's health is at risk."

This is a dangerous ruling, but I have some hope that its effect will turn out to be limited. Kennedy was horrified by the partial-birth procedure, no doubt sincerely. That emotional response may not carry over into his assessment of other abortion laws.

He may, poor dear, have been so overwrought he simply wasn't thinking straight.

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