Revolution #90, May 27, 2007

The Deadly—and Patriarchal—Logic of the U.S. Supreme Court’s Decision

On April 18, a ruling by the U.S. Supreme Court upheld a federal ban on an abortion procedure known as “intact dilation and extraction.” This rare procedure is generally done when something goes very wrong with the pregnancy, or when a doctor decides this is the safest method of abortion for a woman with health risks. For the 2,200 women a year who need it, the availability of this procedure could be literally a life-saver. Taking this crucial option away was very bad in its own right. But the Supreme Court decision went further and, in deciding the case, changed how the law is understood in an ominous way.

The following is reprinted from “Christian Fascists Gain Ground, Supreme Court Decision: Huge Attack on Women,” Revolution 86, April 29, 2007 (the entire article is available at

Previous Court decisions have emphasized the woman’s right to make decisions concerning her own life and health. Now the Court has put much more emphasis on protecting the life of the fetus. It took out provisions for the woman’s health and provided exceptions only in very extreme cases, to save the pregnant woman’s life. (And decisions about this will, of course, be contested by anti-abortionist district attorneys.)

But while the Court seriously eroded the protection of a woman’s health, the very same ruling implied that abortion causes women emotional harm. While conceding that there is no “reliable data” on this, Justice Kennedy, in writing for the majority, immediately went on to say that it was nonetheless “self-evident” and “unexceptional to conclude” that “some women” who choose to terminate a pregnancy suffer “regret, severe depression and loss of self-esteem.” Consequently, he said, the government has a legitimate interest in banning this procedure to prevent women from casually or ill-advisedly making “ so grave a choice.” In other words, the state now has the right to prevent women doing what the state thinks might be emotionally harmful to them! Going further, Justice Kennedy wrote that if the regulation “encourages some women to carry the infant to full term,” this will advance “the state’s interest in respect for life.”

First off, this law will not “encourage” women to do anything—it will force them, under penalty of law, to bear children that they do not want. Second, Kennedy blatantly puts aside real evidence proving that this is a vital procedure to protect a women’s health for the fictitious and cruel pseudo-science that claims a woman who has an abortion might—and, in Kennedy’s thinking, should—“come to regret their choice to abort the infant life they once created and sustained.”

And where did the majority of the highest court in the land get this “evidence"? From a relative handful of affidavits filed by the Justice Foundation—a right-wing Christian group. This group runs a 24 hour “help” line to counsel women that any emotional problems they have come from suppressed feelings from having committed the “sin of abortion” earlier in their lives. This outfit is backed and funded by several Christian Fascist organizations, including Focus on the Family, which openly trumpet the subordination of women to men, and which bombard women with guilt and shame for the “sin” of wanting to control their own destiny.

The radical leap involved in this decision and, even more so, in the logic used to justify it, was reflected in the sharpness of dissent on the Court itself. Justice Ruth Bader Ginsburg described the hostility to women’s right to abortion on the Court as “not concealed” and “alarming.” She pointed out that in the logic of this decision, Congress could pass a law equating abortions with “infanticide” (the killing of a child) and the Court could rule in its favor.

The patriarchal underpinnings of the decision’s logic are further revealed when Kennedy, writing for the majority, states that, “Respect for human life finds an ultimate expression in the bond the mother has for her child.” [our emphasis] Leaving aside for here the fact that a fetus is NOT a child, we must understand how radical and open a departure this is. Again, even the dissenting opinion by Ginsburg argues that before now the Court “recognized the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. The…Court described the centrality of the decision whether to bear a child to a woman’s dignity and autonomy, her personhood and destiny, her conception of her place in society.” Now, Ginsburg writes, the Court adopts a “way of thinking [that] reflects ancient notions of women’s place in the family and under the Constitution - ideas that have long since been discredited.”

In fact, the previous decisions of the Court, including ones that Ginsburg bases herself on, did NOT—and could not—fully uphold the centrality of a “woman’s dignity and autonomy.” But this new decision marks a leap to something much worse, a decision to deal with the contradictions posed by the oppressed position of women under capitalism in a qualitatively more repressive way.

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