Gonzales v. Carhart

  • January 17, 2013

    by Jeremy Leaming

    So a new Pew poll finds a majority of Americans under 30 do not know what the landmark U.S. Supreme Court case, Roe v. Wade was all about. Well this month marks the 40th anniversary of that landmark decision, so maybe a few more of those under 30 will get a clue about a case that advanced liberty for women. They might also learn that Roe has been undercut by subsequent Supreme Court opinions, which have helped state lawmakers create and enact measures making it far more difficult for women to make decisions about their health.

    The opinion issued on Jan. 22, 1973 invalidated a state law banning abortion. A majority of the court led by Justice Harry Blackmun found that the state ban on abortion violated personal privacy. Blackman wrote, in part, that a “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state actions, as we feel it is, or as, the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

    On Jan. 18 – 19 as part of the Constitution in 2020 project, several groups, including ACS, will host a conference examining two landmark Supreme Court cases, one being Roe, that helped advance liberty and equality for minorities. The conference at UCLA called “Liberty/Equality: the View from Roe’s 40th and Lawrence’s 10th Anniversaries,” will include some of the nation’s leading experts on gender, sexuality and equality to examine conflicts that led to the landmark decisions and look at how the current Supreme Court has handled ongoing debate over reproductive rights and equality for the LGBT community (The high court in Lawrence v. Texas invalidated a state law banning sex between consenting adults of the same gender.)

    Dawn Johnsen, an ACS Board Member, will be among the participants at the Constitution in 2020 gathering. Johnsen (pictured), a distinguished law professor at Indiana University Maurer School of Law, authored an ACS Issue Brief in 2008 on the 35th anniversary of Roe. It’s a prescient piece, noting that challenges to reproductive rights were intensifying, partly because of high court decisions that followed Roe, which opened the door to more onerous restrictions on women’s autonomy.

    As noted here recently Reva Siegel and Linda Greenhouse, writing for Balkinization’s Constitution in 2020 conference forum, suggested that a backlash to reproductive freedom was swelling even before Roe was handed down. But in her ACS Issue Brief, Johnsen noted that the setbacks to Roe really got underway with the high court’s 1992 Planned Parenthood v. Casey opinion.

  • June 16, 2011
    Losing Twice
    Harms of Indifference in the Supreme Court
    Emily M. Calhoun

    By Emily M. Calhoun, Professor of Law, University of Colorado School of Law

    In Gonzales v. Carhart, a challenge to the federal Partial-Birth Abortion Ban Act, Justice Kennedy had an opportunity to reaffirm that women are persons of full constitutional stature, possessing the capacity to make responsible choices about spiritual imperatives.  This was how women were portrayed in an opinion joined by Kennedy in Planned Parenthood v. Casey. Instead, in Carhart, Kennedy described women as vulnerable persons needing State protection against decisions they might come to regret. Moreover, while the capacity for regret is generally associated positively with moral agency, Kennedy defined the regret that women might experience after deciding to have an abortion as a psychological phenomenon associated solely with depression and low self-esteem, psychological states that might justify state regulation of women’s liberty. 

    The Supreme Court’s refusal to entertain a facial constitutional challenge to the Partial-Birth Abortion Ban Act was an obvious loss for women seeking to preserve their right to make choices about pregnancy. That refusal, however, was based on an assertion that there was, as yet, no evidence that the statute would prohibit “the vast majority of D&E abortions,” or would be “a substantial obstacle to late-term, but previability, abortions,” or would subject women to significant health risks. Far more significant was Kennedy’s framing of regret as a sign of vulnerability rather than as evidence of a capacity for moral agency that undergirds and should be protected as a key component of personal liberty.  His suggestion that protecting women from regret is a legitimate basis for state incursions on women’s liberty inflicts a serious harm. (Imagine, for example, the likely uproar were the Supreme Court to suggest that government has a legitimate interest in regulating guns because of the possibility that a gun owner might suffer regret – defined as low self-esteem and depression – after lawfully using his weapon to shoot another.) Carhart thus serves up a second loss, to all women.