|
http://www.supremecourtus.gov/opinions/06pdf/05-380.pdfGinsburg J. starts at p. 49 of the 73-page pdf doc. (some passages reproduced below; emphases mine, citations omitted) Ultimately, the Court admits that “moral concerns” are at work, concerns that could yield prohibitions on any abortion. ... (“Congress could ... conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.”). Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. See, e.g., Casey, ... (“Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”); Lawrence v. Texas, ... (Though “{f}or many persons {objections to homosexual conduct} are not trivial concerns but profound and deep convictions accepted as ethical and moral principles,” the power of the State may not be used “to enforce these views on the whole society through operation of the criminal law.” (citing Casey,...).
... The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, ... (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.
This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, ... (1908) (“protective” legislation imposing hours-of-work limitations on women only held permissible in view of women’s “physicalstructure and a proper discharge of her maternal funct”); Bradwell v. State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring) (“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. ... The paramount destiny and mission of woman are to fulfil{l} the noble and benign offices of wife and mother.”), with United States v. Virginia, ... (1996) (State may not rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women; “{s}uch judgments have ... impeded . . . women’s progress toward full citizenship stature throughout our Nation’s history”); Califano v. Goldfarb, ... (1977) (gender-based Social Security classification rejected because it rested on “archaic and overbroad generalizations” “such as assumptions as to {women’s} dependency” ...).
Though today’s majority may regard women’s feelings on the matter as “self-evident,” ... this Court has repeatedly confirmed that “{t}he destiny of the woman must be shaped ... on her own conception of her spiritual imperatives and her place in society.” Casey, 505 U. S., at 852. See also id., at 877 (plurality opinion) (“{M}eans chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”); ... . As a companion piece, I continue to recommend the reasons of Madam Justice Bertha Wilson in Morgentaler (and others in the majority; Willson J. starts at p. 161), the 1988 decision in which the Supreme Court of Canada struck down the criminal abortion law here. It is probably impossible for a man to respond, even imaginatively, to such a dilemma not just because it is outside the realm of his personal experience (although this is, of course, the case) but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma. As Noreen Burrows, lecturer in European Law at the University of Glasgow, has pointed out in her essay on "International Law and Human Rights: the Case of Women's Rights", in Human Rights: From Rhetoric to Reality (1986), the history of the struggle for human rights from the eighteenth century on has been the history of men struggling to assert their dignity and common humanity against an overbearing state apparatus. The more recent struggle for women's rights has been a struggle to eliminate discrimination, to achieve a place for women in a man's world, to develop a set of legislative reforms in order to place women in the same position as men (pp. 81-82). It has not been a struggle to define the rights of women in relation to their special place in the societal structure and in relation to the biological distinction between the two sexes. Thus, women's needs and aspirations are only now being translated into protected rights. The right to reproduce or not to reproduce which is in issue in this case is one such right and is properly perceived as an integral part of modern woman's struggle to assert her dignity and worth as a human being.
|
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
