The Right-s Reasons- Constitutional Conflict and the Spread of Wo

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Lectures THE RIGHT’S REASONS: CONSTITUTIONAL CONFLICT AND THE SPREAD OF WOMANPROTECTIVE ANTIABORTION ARGUMENT REVA B. SIEGEL† INTRODUCTION In Gonzales v. Carhart,1 the Supreme Court upheld the PartialBirth Abortion Ban Act,2 emphasizing that government may regulate the methods employed to perform an abortion “to show its profound 3 respect for the life within the woman” and to vindicate the interest in protecting potential life first recognized in Roe v. Wade.4 Carhart discussed an additional ju
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    Lectures THE RIGHT’S REASONS: CONSTITUTIONAL CONFLICT AND THE SPREAD OF WOMAN-PROTECTIVE ANTIABORTION ARGUMENT R EVA B.   S IEGEL † I NTRODUCTION  In Gonzales v.   Carhart  , 1  the Supreme Court upheld the Partial-Birth Abortion Ban Act, 2  emphasizing that government may regulate the methods employed to perform an abortion “to show its profound respect for the life within the woman” 3  and to vindicate the interest in protecting potential life first recognized in Roe v. Wade . 4   Carhart   discussed an additional justification for restricting abortion—to protect women  as well as the unborn: 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. Copyright © 2008 by Reva B. Siegel. † Nicholas deB. Katzenbach Professor of Law, Yale University. This Lecture was given as the 2007 Brainerd Currie Lecture at Duke Law School and benefited from lively discussion on that occasion. I am grateful to Bruce Ackerman, Kris Collins, Denny Curtis, Ariela Dubler, Sarah Hammond, Serena Mayeri, Joel Paul, Judith Resnik, Casey Pitts, and Robert Post, as well as participants in the faculty workshops at Columbia Law School, Washington University School of Law, University of Pennsylvania Law School, and U.C. Hastings College of Law, for comments on the manuscript. I have been fortunate to have the research assistance of Kathryn Eidmann, Dov Fox, Sarah Hammond, Baolu Lan, Kara Loewentheil, and Justin Weinstein-Tull, and for her great help, owe thanks to Camilla Tubbs and the rest of the Yale Law Library staff. 1. Gonzales v. Carhart, 127 S. Ct. 1610 (2007). 2. Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531 (Supp. V 2005). 3 . Carhart  , 127 S. Ct. at 1633. 4. Roe v. Wade, 410 U.S. 113, 154 (1973) (“[T]he right of personal privacy includes the abortion decision, but . . . this right is not unqualified and must be considered against important state interests in regulation.”);  see   also   Carhart  , 127 S. Ct. at 1633.    1642 DUKE LAW JOURNAL  [Vol. 57:1641 . . . . . . . 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. 5   The only support for these assertions the opinion provided was an amicus brief from the conservative law center The Justice Foundation that quoted affidavits gathered by Operation Outcry from women who claimed to have been coerced into and harmed by abortion. 6   Carhart  ’s woman-protective rationale for restricting abortion is scarcely considered in the Court’s cases, 7  and was not discussed by Congress in enacting the Partial-Birth Abortion Ban Act. 8  But the 5 . Carhart  , 127 S. Ct. at 1634 (citations omitted) (citing Brief of Sandra Cano, the Former “Mary Doe” of Doe v. Bolton , and 180 Women Injured by Abortion as Amici Curiae Supporting Petitioner at 22–24, Carhart  , 127 S. Ct. 1610 (No. 05-380), 2006 WL 1436684). 6 . See   Carhart  , 127 S. Ct. at 1634 (citing Brief of Sandra Cano et al. as Amici Curiae Supporting Petitioner,  supra  note 5, at 22–24). Operation Outcry, a project of The Justice Foundation, collected the affidavits later cited in the Cano brief as part of its mission “to end legal abortion by exposing the truth about its devastating impact on women and families.” See  Brief of Sandra Cano et al. as Amici Curiae Supporting Petitioner,  supra  note 5, at app. 11-106 (sampling “178 Sworn Affidavits of Post Abortive Women” of the approximately 2,000 on file with The Justice Foundation); Operation Outcry: A Project of The Justice Foundation, http://www.operationoutcry.org (last visited Apr. 31, 2008). 7 . But cf. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 882 (1992). The Casey  Court noted: In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible.  Id.  8. See the factual findings of the Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, § 2, 117 Stat. 1201, 1201–06, reprinted in  18 U.S.C. § 1531 note (Supp. V 2005) (findings), as well as the House Report on the Act, H.R. R EP .   N O .   108-58. Congress did consider, in some detail, the potential physical harms of later abortions. See Partial-Birth Abortion Ban Act of 2003 § 2, 117 Stat. at 1201–06, reprinted in 18 U.S.C. § 1531 note (findings); H.R. R EP .   N O . 108-58 (2003). Congress made no mention, however, of the psychological harm caused by abortions. The Nebraska District Court opinion in Carhart v. Ashcroft  , 331 F. Supp. 2d 805 (D. Neb. 2004)—the district court opinion in Gonzales v. Carhart  —confirms this view. The lengthy 269-page decision in Carhart v. Ashcroft   summarized the entire congressional record without discussing the prevention of psychological harm as a purpose of the statute.  Id.  at 822–52. Nor    2008]  ANTIABORTION ARGUMENT   1643 claim that women need protection from abortion has been spreading within the antiabortion movement for decades and played a central role in arguments for the abortion ban that was enacted in South Dakota in 2006. 9  In the week before South Dakota’s referendum, the New York Times  offered this account of the debate over the abortion ban: [T]he most extreme arguments are nowhere to be found. No bloody fetuses fill billboards, no absolute claims are being offered about women’s rights. Instead, . . . [t]he supporters of the ban . . . speak in gentle tones about how abortion hurts women. “I refuse to show pictures of dead babies,” said Leslee Unruh, who leads Vote Yes For Life, the group that is campaigning for the law, reflecting on methods used by anti-abortion groups. “That’s what the old way was, and that’s why they were losing all these years.” 10   In fact, the South Dakota Task Force to Study Abortion, which recommended that the state ban abortion in 2005, heavily relied on the same Operation Outcry affidavits that Justice Kennedy cited in Carhart  . 11  The Operation Outcry affidavits were first gathered by the do appellate decisions record such a purpose. See  Nat’l Abortion Fed’n v. Gonzales, 437 F.3d 278 (2d Cir. 2006), vacated , 224 Fed. Appx. 88 (2d Cir. 2007); Planned Parenthood Fed’n of Am., Inc. v. Gonzales, 435 F.3d 1163 (9th Cir. 2006), rev’d sub nom. Gonzales v. Carhart,   127 S. Ct. 1610 (2007); Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), rev’d  127 S. Ct. 1610 (2007). The woman-protective argument that appears in Carhart   seems to have entered the case not through findings of Congress or the lower courts, but rather through amicus briefs filed in the Supreme Court, including the brief filed by The Justice Foundation on behalf of Sandra Cano and 180 Women Injured by Abortion,  see Brief of Sandra Cano et al. as Amici Curiae Supporting Petitioner,  supra  note 5, as well as briefs of several other organizations,  see Reva B. Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions , 2007 U.   I LL .   L.   R EV . 991, 1025–26 & n.142 [hereinafter Siegel, The New Politics of  Abortion ] (surveying woman-protective antiabortion argument in amicus briefs filed in Carhart  ). 9. The ban was defeated in an election-day referendum. See Siegel, The New Politics of  Abortion ,  supra note 8, at 991, 993. 10. Monica Davey, National Battle over Abortion Focuses on South Dakota Vote , N.Y.   T IMES ,   Nov. 1, 2006, at A5. Leslee Unruh was exhilarated by the Carhart   decision, which she viewed as affirming and enabling her work: “I’m ecstatic,” said Leslee Unruh, an antiabortion activist in South Dakota. “It’s like someone gave me $1 million and told me, ‘Leslee, go shopping.’ That’s how I feel.” She spent the day conferring with lawyers on how to leverage the ruling to maximum effect in the states. “We’re brainstorming, and we’re having fun,” she said. Stephanie Simon,  Joyous Abortion Foes to Push for New Limits ,   L.A.   T IMES , Apr. 19, 2007, at A25. 11. The brief filed in Carhart   draws this link. See  Brief of Sandra Cano et al. as Amici Curiae Supporting Petitioner,  supra  note 5. One hundred eighty “post-abortive” women joined Sandra Cano’s brief, which offers ninety-six pages of excerpts from affidavits testifying to “their    1644 DUKE LAW JOURNAL  [Vol. 57:1641 antiabortion movement for a lawsuit on behalf of the srcinal plaintiffs in Roe  (Norma McCorvey) 12  and Doe  (Sandra Cano) 13  seeking to introduce new evidence of abortion’s harm to women as grounds for reopening their cases 14 —a “history-making effort to real life experiences” of how “abortion in practice hurts women’s health.”  Id. at 2. The brief informs the Court that the affidavits provided were merely a sampling from “approximately 2,000 on file with The Justice Foundation.”  Id.  at app. 11. The South Dakota Task Force Report repeatedly relies on the affidavits. See S.D.   T ASK F ORCE TO S TUDY A BORTION ,   R EPORT OF THE S OUTH D AKOTA T ASK F ORCE TO S TUDY A BORTION  21–22, 33, 38–39 (2005), available at   http://www.voteyesforlife.com/docs/Task_Force_Report.pdf. 12 . See  Brief in Support of Rule 60 Motion for Relief from Judgment at 2, McCorvey v. Hill, No. 3:03-CV-1340-N (N.D. Tex. 2003), 2003 WL 23891671 (seeking to reopen Roe v. Wade , 410 U.S. 113 (1973)). In 1995, Norma McCorvey, the srcinal Roe  plaintiff, was converted by the Rev. Philip “Flip” Benham, Operation Rescue’s national director (who later changed the organization name to Operation Save America).  See Crossing Over Ministry, The Real Story About Jane Roe, http://crossingover.bravehost.com/realstory.html (last visited Apr. 31, 2008) (offering McCorvey’s account of her conversion); Operation Save America, Our Director, http://operationsaveamerica.org/misc/misc/director.html (last visited Apr. 31, 2008) (featuring a photograph of McCorvey being baptized by Rev. Benham in a swimming pool in Dallas, Texas); Douglas S. Wood, Who is ‘Jane Roe’? , CNN. COM , June 18, 2003, http://www.cnn.com/2003/ LAW/01/21/mccorvey.interview/. After attending a Human Life International Conference in 1997, McCorvey began to shift in her intramovement allegiances, and by 1998 was converted to the Catholic Church by Father Frank Pavone, the International Director of Priests for Life. See  Press Release, Roe No More Ministries, Coming Home to Rome (June 15, 1998), available at   http://www.priestsforlife.org/testimony/roecatholicnormapressrelease.html; Norma McCorvey, My Journey into the Catholic Church, http://crossingover.bravehost.com/press/addition.htm (last visited Apr. 31, 2008). Pavone seems to have introduced McCorvey to Harold Cassidy, who in turn enlisted her in a legal campaign to undermine Roe . See  Interview by Father Frank Pavone with Harold Cassidy (Catholic Family Radio broadcast Oct. 31, 1999), available at   http://www.priestsforlife.org/radio/lifeandchoice.htm (interviewing Cassidy about his work on the suit);  see also  Interview by Rick Marschall with Allan E. Parker, Jr., reprinted in The Man Who Would Reverse Roe v. Wade : Exclusive Interview with Allan E. Parker, Jr. ,   R ARE J EWEL M AG ., Jan.–Feb. 2005, available at   http://www.rarejewelmag.com/articles/view_by_group. asp?group=2005-01%20(Jan/Feb):%20The%20Sanctity%20of%20Life (interviewing Parker about Harold Cassidy’s role in beginning legal work with McCorvey). 13 . See  Memorandum of Law in Support of Rule 60 Motion for Relief from Judgment at 1–2, Cano v. Bolton, No. 13676 (N.D. Ga. 2005), 2005 U.S. Dist. LEXIS 41702, available at   http://www.thejusticefoundation.org/images/64456/DoeRule60Memorandum.pdf (seeking to reopen Doe v. Bolton , 410 U.S. 179 (1973)). 14. In 2003, Allan E. Parker of The Justice Foundation, and co-counsel Harold Cassidy, who had drawn McCorvey and Cano into a New Jersey case seeking to impose tort liability on abortion providers, together filed a motion to reopen Roe . See generally Kathleen Cassidy, Post- Abortive Women Attack Roe v. Wade, A T THE C ENTER , Winter 2001, http://www. atcmag.com/v2n1/article6.asp (describing how Parker and Cassidy began working together in the Donna Santa Marie case, with Parker representing McCorvey and Cano as amici curiae and Cassidy representing Donna Santa Marie). Parker and Cassidy argued that under  Agostini v. Felton , 521 U.S. 203 (1997), a Rule 60(b) Motion was the appropriate mechanism for reopening a case and bringing it back to the Court to change one of its own precedents, and used such a motion to argue that the Court should reopen Roe  in light of an alleged change in understanding
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