The Sweet Bond of Love Passage

Wed Apr 18 13:14:32 PDT 2007

Nice point, but here's a quick reaction from the "regulatory policy"
field:  Sometimes the difficulty in effectively communicating accurate
risk information justifies a complete ban on the activity/product that
creates the risk.  And, as Justice Kennedy appears to suggest, sometimes
a regulatory ban can be technology-forcing.

Mark Tushnet

William Nelson Cromwell Professor of Law

223 Areeda Hall

Harvard Law School

Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Samuel Bagenstos
Sent: Wednesday, April 18, 2007 4:04 PM
To: ConLaw Prof
Subject: The Sweet Bond of Love Passage

Folks have already pointed out the paternalism and gender stereotyping
of Justice Kennedy's "bond of love" passage.  I totally agree, but I
also wonder what folks think about the couple of paragraphs it
introduces (reproduced below).  First, am I right that Justice Kennedy
is saying that "partial-birth abortions" can be banned as a means of
providing women informed consent before they agree to undergo such
abortions?  That's pretty paradoxical, no (though I did predict that
Justice Kennedy might say something like this in an article a year ago)?
Second, is there any discrete abortion procedure to which this analysis
wouldn't apply?  That is, could Congress or a state legislature turn to
a new procedure and ban it on the same theory?  Serious questions,
though I may be just totally out to lunch.

* * *

Here's Justice Kennedy:

Respect for human life finds an ultimate expression in the bond of love
the mother has for her child. The Act recognizes this reality as well.
Whether to have an abortion requires a difficult and painful moral
decision. Casey, supra, at 852-853 (opinion of the Court). 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. See Brief for Sandra Cano et al. as
Amici Curiae in No. 05-380, pp. 22-24. Severe depression and loss of
esteem can follow. See ibid.

In a decision so fraught with emotional consequence some doctors may
prefer not to disclose precise details of the means that will be used,
confining themselves to the required statement of risks the procedure
entails. >From one standpoint this ought not to be surprising. Any
number of patients facing imminent surgical procedures would prefer not
to hear all details, lest the usual anxiety preceding invasive medical
procedures become the more intense. This is likely the case with the
abortion procedures here in issue. See, e.g.,Nat. Abortion Federation,
330 F. Supp. 2d, at 466, n. 22 ("Most of [the plaintiffs'] experts
acknowledged that they do not describe to their patients what [the D&E
and intact D&E] procedures entail in clear and precise terms"); see also
id., at 479.

    It is, however, precisely this lack of information concerning the
way in which the fetus will be killed that is of legitimate concern to
the State. Casey, supra, at 873 (plurality opinion) ("States are free to
enact laws to provide a reasonable framework for a woman to make a
decision that has such profound and lasting meaning"). The State has an
interest in ensuring so grave a choice is well informed. 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.

    It is a reasonable inference that a necessary effect of the
regulation and the knowledge it conveys will be to encourage some women
to carry the infant to full term, thus reducing the absolute number of
late-term abortions. The medical profession, furthermore, may find
different and less shocking methods to abort the fetus in the second
trimester, thereby accommodating legislative demand. The State's
interest in respect for life is advanced by the dialogue that better
informs the political and legal systems, the medical profession,
expectant mothers, and society as a whole of the consequences that
follow from a decision to elect a late-term abortion.

Samuel R. Bagenstos

Professor of Law

Washington University Law School

One Brookings Drive, Box 1120

St. Louis, MO  63130

(314) 935-9097 (voice)

(314) 935-5356 (fax)

Personal web page:  http://law.wustl.edu/Faculty/index.asp?id=198

Disability law blog:  http://disabilitylaw.blogspot.com/

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