The second point worth noting is that Justice Kennedy invokes what has become the new rhetoric of abortion opponents — the notion that women often regret abortions and that they are deceived by doctors into having them. This new (post Casey) line of argument arose in the mid 90s when abortion opponents realized that arguing primarily about the status of the fetus would not convince a majority of the public. Instead pro-life advocates sought to argue that abortion hurts women as well as fetuses. The new anti-abortion rhetoric attempts to demonstrate that few women in their right minds, who really understand what abortion involved, would defy their natural love for their children and consent to an abortion, much less seek to procure one. It tries to perform a rhetorical jujitsu move on the idea of choice, by suggesting — without any empirical evidence, that women don't really choose abortions, and that to have an abortion is actually a violation of their "true" choices.

Elements of this new anti-abortion rhetoric appear in Justice Kennedy's argument that because of a mother's natural bond of love for her child, some women would not have abortions if they knew about the intact D&E process. Therefore Congress may ban the procedure entirely. But there are a couple of non-sequiturs here. First, the appropriate remedy for the problem Justice Kennedy identifies would be informing the women about the nature of intact D&E, not preventing the women from choosing whether to undergo the procedure. Second, if a woman did not want to undergo intact D&E, she might still choose to abort the fetus because, as the Court itself point out, the doctor could still perform regular D&E or terminate the fetus by injection before withdrawing it intact. In that case, "the bond of love the mother has for her child," would not prevent the mother from ending the fetus's life. In fact, the argument about mother love seems to be a makeweight; it seems to involve the claim that Congress knows better than women do about what they would choose in certain situations. The law forecloses choice rather than informing it. As Justice Ginsburg points out in her dissent, this is the very sort of paternalism about women ability to make decisions about their reproductive lives that the right to abortion seeks to counter. Justice Kennedy's use of this new form of anti-abortion rhetoric reveals that this particular line of opposition to abortion, at least, is premised on the notion that women don't really know or really understand what they want when they seek abortions. [Emphasis added]

Labels: Abortion, Gonzales v. Carhart, Law, Supreme Court, Women