The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument

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INTRODUCTION

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: 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.

   ... 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 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.... It]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 antiabortion movement for a lawsuit on behalf of the original 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 overturn Roe v. Wade" (15) in which an architect of South Dakota's abortion restrictions (16) played a leading role. The Operation Outcry affidavits were then introduced in South Dakota (17) and the Supreme Court, (18) and have since been entered into state legislative hearings in a number of other states as well. (19) The Outcry affidavits express the new rallying cry of the antiabortion movement. Claims that abortion hurts women and that women are coerced into abortion are now prominently featured on antiabortion websites, (20) and are invoked in support of the abortion ban that will appear on the South Dakota ballot this fall. (21)

Until the Court's decision in Carhart, the rise of gender-based antiabortion arguments was barely noticed in the mainstream press or by scholars outside the public health field. …