How far we’ve come since Justice Joseph Philo Bradley wrote this concurrence to an 1873 Supreme Court decision upholding Illinois’ decision to deny Myra Bradwell admission to practice law because she was a woman.
Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.
Or have we? Four dissenting justices raised that exact question in Gonzales v. Carhart, in which a slender majority abandoned the Supreme Court’s thirty-year precedent of striking down abortion restrictions that fail to consider women’s health and well-being. Instead, the Carhart majority threw the Court back into the age of paternalism, where women were viewed not as equals capable of exercising autonomous choice but as second-class citizens who need to be protected from their own choices.
On its face, the Carhart decision does not impede the right to abortion, as it applies only to a particular procedure. However, the Court did something far more insidious by holding that government views of morality are a sufficient basis for overriding individual liberties. Only four terms ago, the Court took the opposite view in Lawrence v. Texas, which rejected a state ban on consensual sexual relations between individuals of the same sex. Writing for a five-justice majority, Justice Kennedy explained that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” Instead, “[o]ur obligation is to define the liberty of all, not to mandate our own moral code.”
Yet Justice Kennedy’s majority opinion in Carhart scales back that commitment to individual liberties, concluding that Congress’ “ethical and moral concerns” are a sufficient basis to override the rights of women and the judgment of doctors regarding how to best treat their patients.
And what are the moral concerns that trump women’s health? The majority pointed to Congress’ desire to save fetuses. But, as Justice Ginsburg noted in her dissent, “the Act scarcely furthers that interest: The law saves not a single fetus from destruction. ... Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life.”
Perhaps that is because the true “moral concern” at work is the desire to punish two politically unpopular groups: women who need second trimester abortions and the doctors who perform them. As Justice Ginsburg further noted:
The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” A fetus is described as an “unborn child,” and as a “baby,” second-trimester, previability abortions are referred to as “late-term,” and the reasoned medical judgments of highly trained doctors are dismissed as “preferences” motivated by “mere convenience.” (internal citations omitted).Indeed, there’s an even more devastating idea at work in the majority opinion: the idea that women need to be saved from their own bad decisions. Without any evidence and only citing to an amicus brief, the majority decided that, notwithstanding the potential health risks, it is acceptable to take away all women’s options because some women may later regret their decision. Justice Ginsburg again disagreed:
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. (internal citations omitted).What explains the Court’s sudden shift away from protecting individual liberties from the tyranny of the moral majority? Undoubtedly, the Carhart decision speaks volumes about what the retirement of Justice Sandra Day O’Connor means for the Court and the country as a whole. Although O’Connor sided with the Court’s more conservative justices on many issues, she stood up for key values like individual autonomy, and women’s equality and right to choose.
For example, Justice O’Connor concurred with the result in Lawrence, explaining that the law in question violated the Equal Protection Clause of the Fourteenth Amendment because “we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.”
Likewise, Justice O’Connor joined Justice Ginsburg’s majority decision in United States v. Virginia, which held that women could not be excluded from the Virginia Military Institute based on stereotypes about their abilities and preferences. The Court held that the government cannot rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women., as “[s]uch judgments have . . . impeded . . . women’s progress toward full citizenship stature throughout our Nation’s history.”
Finally, it hardly needs mentioning that Justice O’Connor was a key vote in several recent Supreme Court decisions that defended women’s autonomy, health, and well-being in the face of overly restrictive abortion laws.
Although Justice Kennedy wrote the majority opinion in Lawrence and joined the majority opinion in U.S. v. Virginia, his analysis in Carhart seriously calls into question the premises on which these very important cases rest. Most certainly, had Justice O’Connor remained on the Court, the result would have been different. Instead, she was replaced with Justice Alito, whose hostility to individual rights has long been apparent. Given the Court’s dramatic shift, whatever remains of our vital rights in these areas is now hanging by a very thin thread.