I am angry about this one. This decision makes me feel angry, and frightened, and helpless.
The judicial system has always been my favorite of the three branches of government, and the Supreme Court my favorite of the top institutions. It has made bad decisions in the past, but it always seemed to be ahead of the curve, keeping pace with public opinion and the gradual liberalization of this country, while the other two branches of government tended to lag behind. They upheld the rights of the Cherokee and the rights of black students (eventually). Today, though, the court seems unconcerned with the rights of women.
In its 5-4 decision, the court has swung back the pendulum on women’s rights to their own bodies. Justice Kennedy was the swing vote, and also wrote the majority opinion. That opinion only addresses the narrow case of intact D&X procedures. Kennedy deferred to Congress’s bogus “findings” that D&X is always unsafe, and never medically necessary. The only bright ray in this is that, once again, only Scalia and Thomas joined a concurring opinion that called for the reversal of Roe v. Wade and Planned Parenthood v. Casey. Kennedy did not affirm these decisions in his opinion, but he did cite them. Newly-minted justices Alito and Roberts only joined the majority opinion, not the concurring one, implying that they don’t believe the two cases above should be overturned.
Ginsburg, in her minority opinion, was, as always, beautiful:
Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG).
It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.
In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court’s defense of the statute provides no saving explanation. In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court—and with increasing comprehension of its centrality to women’s lives.
I wish that I had more to say on this. As a reasonable person who believes in a woman’s rights over her own body—i.e., a feminist—this sort of thing disturbs me greatly. As an American citizen, it makes me worried about what other oft-affirmed rights will be chipped at by the new Court. As a man, it makes me feel responsible, and that I haven’t done enough to ensure that this sort of thing can’t happen.