In Gonzales v. Carhart, we saw our newly constituted Supreme Court, with Bush’s picks Chief Justice Roberts and Justice Alito, assert its “concern” for women. How did they do that? By allowing women who must terminate difficult pregnancies – because of their own health complications, like cancer of the placenta, or fetuses with grave medical conditions – to choose the safest medical procedure for them? No.
The Court decided to protect these women—not from the significant health risks that attend problem pregnancies—but from themselves. That’s right. Chief Justice Roberts and Justices Alito, Kennedy, Scalia and Thomas decided to uphold a federal law that prohibits a medically-approved abortion method in every state across the nation with no exception to protect a woman’s health. And they did it, according to their unique logic, for women’s own good.
Let us explain.
In the majority decision, Justice Kennedy and the other four Justices who agreed with him decided not to reaffirm Roe v. Wade’s respect for the importance of women’s health or women’s autonomy to make decisions, but instead added a new element entirely – “the bond of love the mother has for her child.” This bond, they say, means that it is “unexceptionable to conclude that some women come to regret their choice to abort the infant life they once created and sustained.” And although they admit there is “no reliable data to measure the phenomenon,” they are sure that abortion has serious harmful effects on women, including severe psychological consequences. And because the justices are sure women don’t really know how “brutal and inhumane” the banned procedure is, they decide to ban it outright. Not to give women information about it, not to let women choose whether they want to undergo it, but to eliminate the option altogether. The Court is merely protecting women from the consequences of their decisions. It’s for women’s own good.
Justice Ginsburg’s passionate dissent illustrates precisely the dangerous path now paved by the new Court majority: “the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.” Justice Ginsburg goes on to note that “[t]his way of thinking reflects ancient notions about women’s place in the family and under the Constitution – ideas that have long since been discredited.”
Gonzales v. Carhart was not just a case about abortion. It was a statement about women’s role in society. We’ve been saying for years that the right to choose is linked directly to women’s social, economic and political freedom. This decision finally makes the link all too clear.