Consider Gonzales v. Carhart, his five-four opinion in April upholding the federal ban on partial-birth abortions. There was nothing inherently objectionable about Kennedy's tie-breaking vote to uphold the ban--an uncharacteristic example of deference to Congress from the justice who has voted to strike down more acts of Congress than any of his colleagues except for Justices Scalia and Thomas. But Kennedy couldn't resist adorning his opinion with an unnecessary soliloquy about how the ban would serve the noble goal of protecting women from emotional distress. "Respect for human life finds an ultimate expression in the bond of love the mother has for her child," he wrote portentously. "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."
Rosen goes on to write:
Kennedy simply didn't care that he could find no "reliable data to measure the phenomenon." For him, "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 ...."
Why is Kennedy so confident that this is "self-evident"? As Ginsburg suggested, a woman who is determined to have an abortion might suffer more profound anguish at enduring a procedure that her doctor considers less safe, or she might suffer just as much anguish if she ends her pregnancy with another, more common abortion procedure--one that Kennedy insists is her constitutional right. The truth is that Kennedy isn't interested in examining the actual experiences of real women affected by the partial-birth abortion ban; he feels he has an intuitive understanding of what women are feeling and is convinced that he has a unique and solemn responsibility to define the essential nature of women's dignity.
After reading Rosen's piece, I read through Gonzales v. Carhart and reached a similar conclusion about the essentially arbitrary nature of Kennedy's "soliloquy," which as Ginsburg points out in the minority's dissent rests upon "an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices. "
