The Sweet Bond of Love Passage

Wed Apr 18 14:06:55 PDT 2007

Yes – but do those regulations prohibit the exercise of liberties treated as
fundamental rights (well, at least in a past life)? 

Darren Lenard Hutchinson

Professor of Law

American University, Washington College of Law

4801 Massachusetts Avenue, N.W.

Washington, D.C. 20016

Phone: (202) 274-4048

Fax: (202) 730-4587

Email: dhutchinson at wcl.american.edu

Webpage: http://wcl.american.edu/faculty/hutchinson/

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Tushnet
Sent: Wednesday, April 18, 2007 4:23 PM
To: Samuel Bagenstos; ConLaw Prof
Subject: RE: The Sweet Bond of Love Passage

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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