Destabilizing discourses: Blocking and exploiting a new discourse at work in Gonzales v. Carhart

Virginia Law Review

Volumn 94, Issue 6, 2008, Pages 1451-1508

  Ivey, Rebecca E ^a  

^a NONE

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EID: 56449102011     PISSN: 00426601     EISSN: None     Source Type: Journal    
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References (282)

1. 127 S. Ct. 1610 (2007).
2. Pub. L. No. 108-105 § 3 (codified as amended at 18 U.S.C. § 1531 (2007)).
3. 530 U.S. 914 (2000).
4. Neb. Rev. Stat. Ann. § 28-328(1) (Supp. 2003).
5. Gonzales, 127 S. Ct. at 1629-30.
6. 505 U.S. 833, 874 (1992) (plurality opinion).
7. An intact D & E differs from a standard D & E in that in the former, the fetus is "delivered" to a point where all but its head is outside the woman's body, at which point the physician punctures the skull and removes brain material;
8. in the latter, the fetus is pulled apart in the process of extracting it from the uterus. See Gonzales, 127 S. Ct. at 1620-23;
9. Stenberg, 530 U.S. at 924-29. Both are largely performed in the second trimester.
10. Stenberg, 530 U.S. at 924-27.
11. The medical term "intact D & E," used in Gonzales, the term "D & X," used in Stenberg, and the term "partial birth abortion" refer to the same procedure. For consistency and clarity, this Note uses the term "intact D & E" throughout, as it is the term used most often, though not exclusively, in Gonzales to describe the procedure.
12. Gonzales, 127 S. Ct. at 1636-37.
13. Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 Emory L.J. 815, 837 (2007) [hereinafter Siegel, Sex Equality Arguments];
14. see Reva B. Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions, 2007 U. 111. L. Rev. 991, 991-93 (2007) [hereinafter Siegel, New Politics]. While this Note cribs the adjective "woman-protective" from Professor Siegel's articles, the intention here is to describe a discourse rather than a justification or argument. The discourse does provide a justification, but is capable of (and does) much more work.
15. Gonzales, 127 S. Ct. at 1634.
16. 410 U.S. 113, 154 (1973) ("We ... conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.").
17. The undue burden test, crafted in Casey, declares that "[t]he woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade.... On the other side of the equation is the interest of the State in the protection of potential life." 505 U.S. at 871 (emphasis added).
18. Discourses describe a subject, and thus create a diffuse network of power relations structuring, defining, and allowing interpretation of a subject. See Judith Butler, Gender Trouble: Feminism and the Subversion of Identity, at ix (Routledge 1990). The term "discourse" as used in this Note references Michel Foucault's description, which claims that discourse is not a slender surface of contact, or confrontation, between a reality and a language ... [; it] describe[s] not the dumb existence of a reality, nor the canonical use of a vocabulary, but the ordering of objects.... [Discourses are not] groups of signs, but... practices that systematically form the objects of which they speak.
19. Michel Foucault, The Archaeology of Knowledge 54 (A.M. Sheridan Smith trans., Routledge 2d ed. 2002) (1969).
20. 530 U.S., at 953 (Scalia, J., dissenting);
21. id. at 958-60 (Kennedy, J., dissenting);
22. id. at 984-89 (Thomas, J., dissenting). Consequently, this discourse was also addressed, albeit cursorily, in the majority and concurring opinions.
23. Id. at 923 (majority opinion);
24. id. at 951-52 (Ginsburg, J., concurring).
25. Reva Siegel identifies and analyzes the court's woman-protective justification or argument in various articles. See Siegel, Sex Equality Arguments, supra note 9, at 835;
26. Siegel, New Politics, supra note 9. The rise of the concept of fetal pain is detailed by two scholars addressing "fetal pain legislation."
27. See Katherine E. Engelman, Fetal Pain Legislation: Protection Against Pain Is Not an Undue Burden, 10 Quinnipiac Health L.J. 279, 281 (2007);
28. Hannah Stahle, Fetal Pain Legislation: An Undue Burden, 10 Quinnipiac Health LJ. 251,252 (2007).
29. See Roe, 410 U.S. at 117-18.
30. See Casey, 505 U.S. at 844.
31. This Note cribs the term "fetal pain" from two articles that use the term "fetal pain legislation" to refer to the proposed and defeated 2006 bill entitled the Unborn Child Pain Awareness Act of 2006, H.R. 6099,109th Cong. (2006).
32. See Engelman, supra note 15, at 281; Stahle, supra note 15, at 252.
33. Roe, 410 U.S. at 150.
34. Id. at 156.
35. Id. at 157.
36. Id. at 158.
37. However, while a fetus does not have the constitutionally protected rights associated with personhood, it can act as a legal entity in which others may have an interest. Id. at 161-63 (analyzing examples in tort and property law).
38. 505 U.S. at 871 (citing Roe, 410 U.S. at 163) ("[T]he State's important and legitimate interest in potential life ... has been given too little acknowledgment and implementation by the Court in its subsequent cases.").
39. Id. at 876.
40. 530 U.S. at 930 (internal quotation marks omitted).
41. Stenberg, 530 U.S. at 930-31.
42. Id. at 946 (Stevens, J., concurring).
43. Id. at 963 (Kennedy, J., dissenting).
44. Id. at 1002 (Thomas, J., dissenting) (emphasis added). While it is internally contradictory that by viewing the human-like body of the fetus and becoming aware of its likeness to a borne human infant one is effectively dehumanizing the fetus, this argument carries weight.
45. Gonzales, 127 S. Ct. at 1627 (emphasis added). Justice Kennedy's word choice complements the reconfigured fetal life discourse characterizing the fetus as alive, whether or not it is a person.
46. Casey contains the first linguistic slippage suggesting a third category between potential life and legal personhood: fetal life after viability, which in Casey is neither potential, nor legal.
47. See Casey, 505 U.S. at 870 ("[Viability ... is [when] there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman.") (emphasis added).
48. Gonzales, 127 S. Ct. at 1633-34. Infanticide was not always reviled. In the seventeenth and eighteenth centuries, infanticide was seen in a more sympathetic light. Changes in sexual ideologies and increased access to and effectiveness of birth control in the late nineteenth and twentieth centuries made infanticide less understandable. Poverty, youth, and illegitimacy have disappeared as excuses available to the accused.
49. See Elizabeth Rapaport, Mad Women and Desperate Girls: Infanticide and Child Murder in Law and Myth, 33 Fordham Urb. L.J. 527, 546-47 (2006).
50. Gonzales, 127 S. Ct. at 1634 (emphasis added).
51. 521 U.S. 702, 732-35 (1997).
52. Gonzales, 127 S. Ct. at 1634.
53. See infra note 45 and accompanying text.
54. The claim that a fetus is aware of pain is contested. See Stahle, supra note 15, at 258-59 (citing J.A. Burgess & S.A. Tawia, When Did You First Begin to Feel It?, 10 Bioethics 1, 3, 18, 23 (1996);
55. Sampsa Vanhatalo & Onno van Nieuwenhuizen, Fetal Pain?, 22 Brain & Dev. 145, 145-46 (2000)) (arguing conscious pain response can be measured at thirty weeks);
56. see also Engelman, supra note 15, at 281-82 (citing Susan J. Lee et al., Fetal Pain: A Systematic Multidisciplinary Review of the Evidence, 294 JAMA 947 (2005)) (disputing findings that conscious pain response cannot be measured before twenty-nine weeks). Both articles acknowledge that scientific studies present conflicting evidence and that assessments of fetal pain are subjective and contingent.
57. Stenberg v. Carhart, 530 U.S. 914, 930-31 (2000).
58. Instead, Justice Breyer suggests that preventing cruelty and the other purposes suggested by Nebraska are inapplicable to the omission of a health exception for the pregnant woman. Id. at 931.
59. Black's Law Dictionary 405 (8th ed. 2004).
60. Justice Kennedy's description of the procedure has been criticized as "graphic" or an attempt to shock the reader. See Randy Beck, The Essential Holding of Casey: Rethinking Viability, 75 UMKC L. Rev. 713, 736 (2007);
61. see also Caitlin E. Borgmann, Winter Count: Taking Stock of Abortion Rights after Casey and Carhart, 31 Fordham Urb. L. J. 675, 712 (2004).
62. Stenberg, 530 U.S. at 958-59 (Kennedy, J., dissenting) ("The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb.").
63. Id. at 959-60 (Kennedy, J., dissenting) ("With only the head of the fetus remaining in utero, the abortionist tears open the skull.... The abortionist then inserts a suction tube and vacuums out the developing brain and other matter found within the skull.").
64. Id. at 959 (Kennedy, J., dissenting) (citiation omitted) (emphasis added).
65. Id. at 983 (Thomas, J., dissenting) ("The most widely used method of abortion during this stage of pregnancy is so gruesome that its use can be traumatic even for the physicians and medical staff who perform it.").
66. Id. at 1007 (Thomas, J., dissenting).
67. Justices Stevens and Ginsburg argue that the visibility of the procedure does not equate it to infanticide, nor does fetal pain override the interests of the woman. See id. at 946 (Stevens, J., concurring);
68. id. at 951 (Ginsburg, J., concurring).
69. Gonzales v. Carhart, 127 S. Ct. 1610, 1622 (2007).
70. Id.
71. See supra note 47 and accompanying text.
72. Gonzales, 1217 S. Ct. at 1622-23 (citing H.R. Rep. No. 108-58, p. 3 (2003)).
73. See infra notes 73-83 and accompanying text.
74. Gonzales, 1217 S. Ct. at 1633 (citing 18 U.S.C. § 1531 note (2000 ed., Supp. IV)) (emphases added).
75. Id. at 1634.
76. See infra notes 127-49 and accompanying text.
77. See infra note 82 and accompanying text.
78. Roe v. Wade, 410 U.S. 113,164 (1973) (emphasis added).
79. Id. at 164-65 (emphasis added).
80. Id. at 166 (emphasis added).
81. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 882 (1992).
82. Id. at 884 ("Whatever constitutional status the doctor-patient relation may have as a general matter, in the present context it is derivative of the woman's position.").
83. Id. at 882.
84. See supra notes 58-60 and accompanying text.
85. Stenberg v. Carhart, 530 U.S. 914, 937 (2000).
86. Id. at 964-65 (Kennedy, J., dissenting).
87. Id. at 972 (Kennedy, J., dissenting).
88. Id. at 1013 (Thomas, J., dissenting).
89. Gonzales v. Carhart, 127 S. Ct. 1610, 1634 (2007).
90. Id. at 1636.
91. Id. at 1634 (internal citations omitted).
92. Justice Ginsburg notes that the solution is unsuited to the problem: "The solution ... then is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead the Court deprives women of the right to make an autonomous choice, even at the expense of their safety."
93. Id. at 1648-49 (Ginsburg, J., dissenting) (citation omitted). Justice Ginsburg resists imposition of the woman-protective discourse and places the doctor in a protective role over the woman's health, but not her decision: "The court's allowance only of an 'asapplied challenge in a discrete case,' jeopardizes women's health and places doctors in an untenable position .... In treating those women, physicians would risk criminal prosecution, conviction, and imprisonment if they exercise their best judgment as to the safest medical procedure for their patients."
94. See id. at 1652.
95. Roe, 410 U.S. at 162.
96. Id. at 160.
97. Casey, 505 U.S. at 850.
98. Stenberg, 530 U.S. at 930-31 (emphasis added).
99. Id. at 961.
100. Id. at 962 (Kennedy, J., dissenting) (citing Casey, 505 U.S. at 852) (emphasis added).
101. This argument is inconsistent with the argument that a physician's medical judgment might be self-interested. If physicians' moral health is declining, this is an unconscious leaning; conversely, if a physician performs abortions for political or convenience reasons this is a conscious choice to disregard the health of the patient. For the latter argument, see supra notes 66-72 and accompanying text. These are two very different rationales that should not easily coexist, but they do just that in Justice Kennedy's rhetoric.
102. Gonzales, 127 S. Ct. at 1633 (citing 18 U.S.C. § 1531 note (2000 ed., Supp. IV)).
103. Id. at 1635 (citing 18 U.S.C. § 1531 note (2000 ed., Supp. IV)).
104. This is an example of a supplementary medical discourse, the regulatory discourse, which is unexceptional in its simplest expression: the government has the right to establish rules of ethics for professionals. The Court accepts that one of the state's interests is regulating the medical profession: "a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life." Roe, 410 U.S. at 154 (emphasis added). While Casey, Stenberg, and Gonzales focus on the last of these interests, various Justices throughout these (and other) cases use the regulatory discourse if it bolsters their argument. In Gonzales, Justice Kennedy weds the regulatory discourse to the ethical-protective discourse: "There can be no doubt the government 'has an interest in protecting the integrity of the medical profession.' Under our precedents it is clear the State has a significant role to play in regulating the medical profession."
105. Gonzales, 127 S. Ct. at 1633 (citing Washington v. Glucksberg, 521 U.S. 702, 731 (1997);
106. Barsky v. Board of Regents of Univ. of N.Y., 347 U.S. 442, 451 (1954)). In doing so, Justice Kennedy uses the strength and legitimacy of the regulatory discourse to buttress his arguments holding Congress's purposes justifiable.
107. Stenberg, 530 U.S. at 1013 (Thomas, J., dissenting).
108. 410 U.S. at 153-54.
109. Id. at 153.
110. 505 U.S. at 856 (citing Rosalind Petchesky, Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom 109,133 & n.7 (rev. ed. 1990)).
111. Roe, 410 U.S. at 129.
112. Id. at 153.
113. Id. at 155.
114. Id. at 164-65.
115. Id. at 162-63.
116. Casey, 505 U.S. at 844 (citation omitted).
117. Id. at 851 (citing Carey v. Population Servs. Int'l, 431 U.S. 678,685 (1977)).
118. Id. at 851.
119. Id. at 852.
120. Id. at 856.
121. Id. at 896.
122. This focus on privacy perhaps coincides with normative ideas of women's appropriate sphere of existence in the early and middle twentieth century.
123. Casey, 505 U.S. at 928-29 (Blackmun, J., concurring in part) (citing Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-26 (1982);
124. Craig v. Boren, 429 U.S. 190, 198-99 (1976)).
125. Stenberg, 530 U.S. at 930. The focus on women's health corresponds to the nature of the challenges brought against the Nebraska law, but also reflects a movement away from the women's rights discourse.
126. Id. at 946 (Stevens, J., concurring).
127. Stenberg, 530 U.S. at 952 (Ginsburg, J., concurring) (citing Hope Clinic v. Ryan, 195 F.3d 857, 881 (7th Cir. 1999) (Posner, J., dissenting)).
128. Stenberg, 530 U.S. at 965 (Kennedy, J., dissenting) (citing Casey, 505 U.S. at 875).
129. Id. at 979 (Kennedy, J., dissenting).
130. Id. at 1006 (Thomas, J., dissenting).
131. Id. at 1007 (Thomas, J., dissenting).
132. Gonzales, 127 S. Ct. at 1626 (citing Casey, 505 U.S. at 879).
133. Id. at 1627 (citing Casey, 505 U.S. at 877).
134. Id. at 1634 (citing Brief for Sandra Cano et al. as Amici Curiae Supporting Petitioners at 22-24, Gonzales v. Carhart, 127 S. Ct. 1610 (2007) (No. 05-380)).
135. Roe, 410 U.S. at 149 (footnote omitted).
136. Id. at 153. This language is relevant to both the women's health discourse and the woman-protective discourse, and for this reason is referenced again below.
137. See infra note 129 and accompanying text.
138. Casey, 505 U.S. at 878.
139. Id.
140. Regarding the spousal consent provision, Casey expands the definition of "family violence" to psychological abuse, marital sexual assault, child abuse, and fear of retaliation. See id. at 888-91.
141. Id. at 941 (Blackmun, J., concurring in part). This Note will deal with this language again because it is relevant to both the women's health discourse and the woman-protective discourse. This dual relevance results from the complicated and intertwined nature of these discourses.
142. See infra notes 134-135 and accompanying text.
143. Id. at 969 (Rehnquist, C.J., dissenting in part). This Note will also deal with this language again as relevant to both the women's health discourse and the womanprotective discourse.
144. See infra note 136 and accompanying text.
145. Stenberg, 530 U.S. at 931.
146. Id. at 931-32 ("The problem for Nebraska is that the parties strongly contested this factual question in the trial court below; and the findings and evidence support Dr. Carhart.").
147. Id. at 965 (Kennedy, J., dissenting).
148. Id. at 967 (Kennedy, J., dissenting). This language places women's physical health and women's moral health on par with one another, and situates the legislature in the role of protecting the moral health of the woman. The women's health discourse and the woman-protective discourse intertwine here.
149. For this reason, the cited language also appears below in the discussion of the woman-protective discourse. See infra note 140 and accompanying text.
150. Id.
151. Gonzales, 127 S. Ct. at 1626.
152. Id. at 1635 (quoting Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006)) (emphasis added).
153. Id. at 1636.
154. Id. In Stenberg, Justice Breyer relies exclusively on Casey's explicit requirement that a post-viability regulation contain a health exception. In Gonzales, Justice Kennedy cites cases regarding other types of legislation in areas where there is medical or scientific uncertainty, effectively overruling Casey's holding regarding the health exception.
155. Gonzales, 127 S. Ct. at 1638 (Ginsburg, J., dissenting).
156. Roe, 410 U.S. at 149.
157. Id. at 164-65.
158. Id. at 153. This language is relevant to both the women's health discourse and the woman-protective discourse.
159. See supra note 111 and accompanying text.
160. Casey, 505 U.S. at 878.
161. Id. at 877.
162. Id. at 883.
163. Id. at 879.
164. See supra note 115 and accompanying text. Again, this language is relevant to both the women's health discourse and the woman-protective discourse; consequently, this Note analyzes the language once in each section.
165. Casey, 505 U.S. at 941 (Blackmun, J., concurring).
166. Id. at 969 (Rehnquist, C.J., dissenting).
167. Stenberg, 530 U.S. at 938 (quotation omitted).
168. Id.
169. Id. at 964 (Kennedy, J., dissenting).
170. Id. at 967. This language previously appeared in the discussion of the women's health discourse, to which it is also relevant.
171. See supra note 120 and accompanying text.
172. Gonzales, 127 S. Ct. at 1638.
173. Id. at 1633.
174. Id. at 1634.
175. Id. (citing Brief for Sandra Cano et al. as Amici Curiae Supporting Petitioners at 22-24, Gonzales v. Carhart, 127 S. Ct. 1610 (2007) (No. 05-380)).
176. Id.
177. Id.
178. Id. (emphasis added).
179. Id.
180. Justice Ginsburg notes that instead of correcting women's supposed lack of knowledge about the surgical procedures involved in an intact D & E, Justice Kennedy would "inform" women by banning the procedure, which is patently illogical. Id. at 1648-49 (Ginsburg, J., dissenting). She also identifies and challenges the protectionist rationale of the majority opinion. Protecting women from the consequences of their choices, suggests Ginsburg, "reflects ancient notions about women's place in the family and under the Constitution-ideas that have long since been discredited."
181. Id. at 1649.
182. Stahle, supra note 15, at 274.
183. Casey, 505 U.S. at 871 (emphasis added).
184. Id. at 872.
185. Id. (emphasis added).
186. Id. at 873.
187. Id. at 876.
188. Id. at 877 (emphases added).
189. Id. at 877.
190. Id. at 878.
191. Id. at 879 (quoting Roe, 410 U.S. at 164-65).
192. While Doe v. Bolton, a companion case to Roe, briefly discusses the health exception, the Court in its discussion notes that "[w]hether, in the words of the Georgia statute, 'an abortion is necessary' is a professional judgment that the Georgia physician will be called upon to make routinely," leaving the health exception to be defined by each woman's physician, an opening that could have been exploited in later abortion jurisprudence. 410 U.S. 179, 192 (1973). Nonetheless, since Casey the Court has overlooked Doe's version of the health exception in favor of Casey's phrasing, with its blanket requirement of a health exception.
193. See, e.g., Stenberg, 530 U.S. at 937-38;
194. Gonzales, 127 S.Ct. at 1635.
195. The only exception is the Gonzales opinion, which also cites Ayotte v. Planned Parenthood of N. New England, a recent decision that makes no reference to Doe. Gonzales, 127 S. Ct. at 1635 (citing Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 327-28 (2006)).
196. Gonzales, 127 S. Ct. at 1633.
197. 18 U.S.C. § 1531 note (2000 ed., Supp. IV).
198. Stenberg, 530 U.S.at 931 (emphasis added).
199. Casey, 505 U.S. at 879.
200. 410 U.S. 179 (1973).
201. Brief for Sandra Cano et al. as Amici Curiae Supporting Petitioners at 1, Gonzales v. Carhart, 127 S. Ct. 1610 (2007) (No. 05-380). This assertion is supported by Cano's affidavit, which accuses her mother, step-father, and lawyer of attempting to trick her into having an abortion and, when that was unsuccessful, litigating the Doe case without her consent and subsequently refusing to assist her in caring for her child, forcing her "to surrender [her] rights and give [her] baby up for adoption." Id. at App. A, 11 4-10.
202. Id. at 1.
203. Id. at App. A, at ¶ 17-18 (emphases added).
204. Id. at App. A, at ¶ 9. Cano did succeed in having her baby, but not in raising her. It was forced adoption, and not forced abortion, that deprived her of her child.
205. Id.
206. Id. at 5.
207. Id. at 9 (emphasis added). Immediately following this argument, the brief analogizes that, [i]n other procedures such as [inserting] silicone breast implants, a woman and her doctor cannot make that surgery choice because the [FDA] placed a moratorium on the device due to the health risks that were involved. Therefore, they should not be able to 'choose' abortion which is a more dangerous and risky procedure.
208. Id. (emphasis added).
209. Id. at 16 (quoting Texas Dep't of Health, A Woman's Right To Know 16 (2003), available at http://www.dshs.state.tx.us/wrtk/pdf/booklet.pdf).
210. Id. at 19 (quoting Report of the South Dakota Task Force to Study Abortion 47-48 (Dec. 2005), available at http://www.voteyesforlife.com/docs/ Task_Force_Report.pdf (emphases added)).
211. Id. at 19.
212. Justice Ginsburg thoroughly canvasses the literature on post-abortion syndrome and finds little support for its existence. See Gonzales, 127 S. Ct. at 1648 n.7 (Ginsburg, J., dissenting).
213. Brief for Sandra Cano et al. as Amici Curiae Supporting Petitioners at 26, Gonzales v. Carhart, 127 S. Ct. 1610 (2007) (No. 05-380).
214. Those wishing to counter this claim have many arguments at their disposal. First, the assumption that a woman's natural bond with a child creates a trauma when that bond is separated should allow for not only the prohibition of all abortions, but prohibition of all adoptions of children with living mothers. Second, the factual basis for the post-abortion syndrome is challenged in many medical articles. Third, even those authorities conceding the possibility of post-abortion syndrome suggest it is less common than post-partum depression, thus dislocating depression from an explicit association with abortion. Fourth, women with either wanted or unwanted pregnancies experience post-partum depression, thus marking depression as a possibility no matter what the conditions surrounding the pregnancy. Fifth, the idea that women must then be protected from depression can easily be challenged by noting that (1)the government doesn't prohibit women from undergoing birth, and (2) the government doesn't prohibit men or women from participating in war (instead encouraging participation), from which post-traumatic stress disorder can result. Supra note 176.
215. Dr. David Reardon, Ph.D., cited in the Cano brief as "one of the world's leading experts on the effects of abortion on women," also originated the argument that abortion harms women and that this argument should be used strategically to pursue antiabortion objectives. Brief for Sandra Cano et al. as Amici Curiae Supporting Petitioners at 22, Gonzales v. Carhart, 127 S. Ct. 1610 (2007) (No. 05-380);
216. see also David C Reardon, Making Abortion Rare: A Healing Strategy for a Divided Nation (Acorn Books 1996).
217. See Roe, 410 U.S. at 153.
218. This is not to say that no woman regrets an abortion-the Cano brief does show that some women regret their abortions, and Justice Kennedy is correct in citing the brief for this point. However, rational human beings, in exerting their freedom to choose, can choose incorrectly and have no remedy for the regret they may feel.
219. Gonzales, 127 S. Ct. at 1634.
220. Consent is defined as patients undergoing medical procedures of any type are routinely required to assess those risks. If the physician fully discloses the risks as required, and a risk is realized despite the physician's non-negligent care, the law holds that because the patient rationally determined the risk was worth taking she cannot recover for injury; this is inherent in the doctrine of informed consent. Black's Law Dictionary 323 (8th ed. 2004).
221. Gonzales, 127 S. Ct. at 1634 (citation omitted).
222. See Karen V. Hansen, A Very Social Time: Crafting Community in Antebellum New England 15-16 (1994) ("The 1820s and 1830s gave birth to a new dictum regarding the place of middle-class white women that dovetailed neatly with the separation of work from family life, and public from private space. . . . The advice literature encouraged wives and mothers to focus their energies on caring for their families and uplifting the morals of society. Women were to guard their sphere and rightful place-the home-with all the virtues imbued in a proper wife-mother . . . .");
223. see also Nancy F. Cott, The Bonds of Womanhood: "Woman's Sphere" in New England, 1780-1835, at 197 (1977);
224. Jayme A. Sokolow, Eros and Modernization: Sylvester Graham, Health Reform, and the Origins of Victorian Sexuality in America (1983);
225. Amy Kaplan, Manifest Domesticity, 70 Am. Literature 581 (1998);
226. Barbara Welter, The Cult of True Womanhood: 1820-1860, 18 Am. Q. 151, 152 (1966). The model of the "separate spheres" has been heavily criticized. Professor Cathy N. Davidson, for example, argues that "those binaric terms suggest [that] according to this metaphor, nineteenth-century America was neatly divided up according to an occupational, social, and affective geography of gender."
227. Cathy N. Davidson, Preface to No More Separate Spheres!, 70 Am. Literature 443, 444 (1998). While separate spheres ideology by no means describes a historical reality, it does describe an ideological construct affecting both sexes in the nineteenth century.
228. See Hansen, supra note 185, at 15-16. This is an ideological, rather than a historically accurate, description.
229. See Sokolow, supra note 185, at 40.
230. See Hansen, supra note 185, at 17.
231. Id.
232. See Siegel, supra note 9, at 831 ("The Court's insistence that abortion regulation not enforce the gender-stereotypical understandings of the separate spheres tradition also shaped its application of undue burden analysis, specifically its rejection of a spousal notice requirement on the grounds that the abortion law reflected 'a view of marriage consonant with the common-law status of married women but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution.'") (citing Casey, 505 U.S. at 898).
233. Cornelia T.L. Pillard, Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access, and Work-Family Policy, 56 Emory L.J. 941, 948 (2007) (citing United States v. Virginia, 518 U.S. 515, 541, 544, 550 (1996).
234. 518 U.S. at 541 (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982)).
235. 511 U.S. 127, 139 n.11 (1994).
236. 450 U.S. 464, 467 (1981) (plurality opinion);
237. see Pillard, supra note 191 at 951 (calling Michael M.'s rationale "fearful gender protectionism").
238. 506 U.S. 263, 267-69 (1993).
239. Id. at 270.
240. Id. at 269-70.
241. Id. at 270 (first emphasis added).
242. Gonzales, 127 S. Ct. at 1634.
243. Brief for Sandra Cano et al. as Amici Curiae Supporting Petitioners at 19, Gonzales v. Carhart, 127 S. Ct. 1610 (2007) (No. 05-380) (citing Report of the South Dakota Task Force to Study Abortion (Dec. 2005), available at http://www.voteyesforlife.com/docs/Task_Force_Report.pdf).
244. Bray, 506 U.S. at 270.
245. Gonzales, 127 S. Ct. at 1634.
246. Bray, 506 U.S. at 270.
247. See United States v. Virginia, 518 U.S. 515, 541 (1995);
248. J.E.B. v. Alabama, 511 U.S. 127, 139 (1984);
249. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982);
250. cf. Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 467 (1981).
251. David B. Cruz, Heterosexual Reproductive Imperatives, 56 Emory L.J. 1157, 1158-59 (2007) (citing Richmond Unified School District v. Berg, 434 U.S. 158 (1977)).
252. Roe, 410 U.S. at 159.
253. Cruz, supra note 205, at 1161 (citing Roe, 410 U.S. at 150).
254. Elizabeth A. Reilly, The Rhetoric of Disrespect: Uncovering the Faulty Premises Infecting Reproductive Rights, 5 Am. U. J. Gender & L. 147, 183 (1996) (citing Skinner v. Oklahoma, 316 U.S. 565, 566 (1942);
255. Buck v. Bell, 274 U.S. 200, 207 (1927)). The fifteen-year gap between Skinner and Buck also explains some of the differences in responses to sterilization, but the point remains that women's reproductive capacity is a dangerous force, while men's is a right, and a part of male personhood.
256. Lisa C Ikemoto, The Code of Perfect Pregnancy: At the Intersection of the Ideology of Motherhood, the Practice of Defaulting to Science, and the Interventionist Mindset of Law, 53 Ohio St. L.J. 1205, 1285 (1992).
257. Janet Beizer, Ventriloquized Bodies: Narratives of Hysteria in Nineteenth-Century France 4 (1993).
258. Id. at 7 (citing Francois Laplassotte, Sexualité et néverose avant Freud: Une mise au point, 3 Psychanalyse à l'université 205 (1978)) (discussing the "modernization" of genital theories of hysteria).
259. Id. at 8 (citing Francois Laplassotte, Sexualité et néverose avant Freud: Une mise au point, 3 Psychanalyse à l'université 205 (1978)) (discussing the "modernization" of genital theories of hysteria).
260. Id. at 8.
261. Id. at 38-39.
262. Stenberg, 530 U.S. at 980 (citing Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 794 (1986) (White, J., dissenting)).
263. Of course, this reflects on various philosophies of the essence of judicial review. However, the disappearance of the legislature is a discursive phenomenon that occurs in some arguments, which have the effect of obscuring its role.
264. Gonzales, 127 S. Ct. at 1648-49 (Ginsburg, J., dissenting).
265. Id. at 1634.
266. See Andrea L. Hibbard & John T. Perry, Law, Seduction, and the Sentimental Heroine: The Case of Amelia Norman, 78 Am. Literature 325, 328 (noting that sentimental discourses "spiritualized] female anguish and sexualize[ed] male domination");
267. Terry S. Kogan, Sex-Separation in Public Restrooms: Law, Architecture, and Gender, 14 Mich. J. Gender & L. 1, 20-23 (2007) (describing "[t]he sentimental vision of the virtuous woman").
268. Gonzales, 127 S. Ct. at 1648 n.8 (Ginsburg, J., dissenting) ("Notwithstanding the 'bond of love' women often have with their children, not all pregnancies, this Court has recognized, are wanted, or even the product of consensual activity." (citing Casey, 505 U.S. at 891 ("[O]n an average day in the United States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents involve sexual assault."))).
269. Id. at 1649 n.9.
270. Id. at 1642 n.3.
271. See supra note 146 and accompanying text.
272. Joan Biskupic, "Partial Birth" Cases Test Abortion Rights' Limits, USA Today, Oct. 30, 2006, at A1, available at http://www.usatoday.com/ news/health/ 2006-10-29-abortion-cover_x.htm.
273. Mary-Dorothy Line, Letter to the Editor, Commonweal, June 14, 1996, at 2, available at http://findarticles.com/p/articles/mi_m1252/is_n12_v123/ ai_18420058/pg_1.
274. Gina Gonzales as told to Barry Yeoman, I Had an Abortion When I Was Six Months Pregnant, Glamour, Oct. 2001, at 204, available at http://www. barryycoman.com/articles/ gina.html.
275. Another scenario is when the woman conceives while using drugs and continues that use at least until she finds she is pregnant. State programs funding birth control or sterilization for such women suggest that the state currently expresses an interest in preventing such pregnancies. See Camille A. Nelson, American Husbandry: Legal Norms Impacting the Production of (Re)Productivity, 19 Yale J.L. & Feminism 1, 40-41 (2007). Carrying fetuses exposed to hard drugs to term may also serve to increase or prolong fetal pain. While few other scenarios reconfigure the fetal interest in this manner, they may anchor the state's interest in women's health. For example, women living in abusive situations where a pregnancy increases their vulnerability to violence creates a configuration in which the threat to their physical health should trump any threat abortion poses to their psychological health. In fact, it is the threat to the health and safety of women in situations of domestic violence that led the Court to strike down as unconstitutional the spousal notification provision in Casey.
276. See 505 U.S. at 887-98.
277. Stenberg, 530 U.S. at 1013 (Thomas, J., dissenting).
278. Pillard, supra note 191, at 982 (citing Joan Williams, Unbending Gender: Why Family and Work Conflict and What to Do About It 71-72 (2000)).
279. Id. at 981.
280. Id. at 981.
281. Id. at 981 (quoting Feminists for Life of America Homepage, http://www.feministsforlife.org/who/aboutus.htm).
282. Id. at 981.