My analysis of the supreme court's decision

[skygazer]

My legal analysis instructor asked us to write a paper discussing our thoughts about this, focusing on the legalities and the court's analysis as well as our personal reaction. I thought I'd post what I wrote here.

My Analysis of the Gonzales Decision

I think the main flaw with this decision lies in the repeated references of Justice Kennedy to the Court’s “legitimate and substantial interest in preserving and promoting fetal life.” This phrase is repeated several times throughout the decision (there is a noticeable lack of any comparable discussion in regards to the health and welfare of women) and given great weight in the conclusions drawn. However, it is faulty reasoning in that the Act as written does nothing to “preserve and promote” fetal life; it continues to allow several alternative methods of performing second trimester abortions. The only possible way it could act to preserve and promote fetal life would be by preventing a woman from getting an abortion because the alternatives were considered too risky to her health and in fact numerous medical professionals testified that the proscribed method is sometimes the safest one in terms of the health and safety of the mother.

This leads me to conclude that the Court’s reasoning is that the life of a nonviable fetus trumps the health and safety of the woman in need of medical attention. This in itself contradicts precedent in several areas.

First, it contradicts precedent because it lacks protection for the preservation of a woman’s health and safety. Second, it contradicts precedent because it blurs the clear line that was previously drawn between a viable and nonviable fetus. And thirdly, it contradicts precedent because it places the welfare of a nonviable fetus above that of the mother.

Beyond that, I’m insulted and alarmed at the paternalistic language and conclusions throughout the decision. Justice Kennedy seems to be saying that women are too fragile to be given any clear information about the medical procedures available to them; rather than require doctors to provide that information, the Court needs to protect these delicate flowers by deciding for them what is in their best interests. He speaks of the tragedy of women who have subsequently come to regret their decision to abort and makes the absurd leap of assuming, against all empirical data, that many women must suffer severe mental anguish because of this (never mentioning what sort of mental anguish might result from having to bear an unwanted child or from undergoing a procedure that caused grave health problems because one that was safer was denied). It is appalling that a Supreme Court Justice could write these things in the year 2007.

Finally, I’m disgusted by the repeated use of emotionally charged and politicized language throughout. Medical professionals are repeatedly referred to as “abortion doctors.” A nonviable fetus is referred to as a “baby.” Page upon page of discussion is devoted to lurid descriptions of what is referred to as “a gruesome and inhumane procedure that is NEVER medically necessary.”

I agree with Justice Ginsberg when she says that the big change is in the makeup of the Court, not the reading of the law.

[Gloria]

1. I'm insulted, too. BIG TIME!! And I'm was insulted when Democrats

passed both Alito and Roberts through. Alito, esp., since I remember well the Princeton Eating Club ban on women and his views on women there....

[renate]

2. thanks for sharing this

What's with the issue of preserving and protecting fetal life in this context? Aren't these procedures ONLY done if the fetus is essentially going to die anyway (or to save the mother's life, and if she were to die, so would the fetus also). The fetus' life can't be preserved or protected, so how can that be used as a principle behind this decision?

Silly me. I'm asking these questions as if the court would have decided any other way. Kind of like asking why they decided Bush v. Gore the way they did.