Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Because of women’’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.
This way of thinking reflects ancient notions about women’s place in the family and under the Constitution— ideas that have long since been discredited.
This on late-term abortions was the predictable consequence of Bush’s Supreme Court nominees getting confirmed since Justice Kennedy had already made it clear in Stenberg v. Carhart where he stood on this issue. What’s less clear is to what extent Kennedy’s Stenberg dissent prefigured a broader decision to step away from the Court’s earlier reproductive freedom jurisprudence. I’ll be looking forward to explanations from Jeffrey Rosen and Benjamin Wittes of why this turn of events is secretly good for reproductive rights.
UPDATE: Ann points out to me that this law bans all performances of the intact D&E procedure and has nothing to do with whether or not the abortion in question is late term.