The Sweet Bond of Love Passage

Wed Apr 18 13:22:43 PDT 2007

Ah, but if you want evidence on this question, lots of regulatory bans are in deep trouble.

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: Samuel Bagenstos [mailto:srbagenstos at wulaw.wustl.edu] 
Sent: Wednesday, April 18, 2007 4:16 PM
To: Mark Tushnet; ConLaw Prof
Subject: RE: The Sweet Bond of Love Passage

True, but where's the evidence that accurate risk information can't be communicated effectively here?  Were I naïve, I would have thought that the "informed consent" part of Casey was based on the effectiveness of such communication.

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/

________________________________

From: Mark Tushnet [mailto:mtushnet at law.harvard.edu] 
Sent: Wednesday, April 18, 2007 3:15 PM
To: Samuel Bagenstos; ConLaw Prof
Subject: RE: The Sweet Bond of Love Passage

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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