Dignity and the politics of protection: abortion restrictions under Casey/Carhart.

• Author: Siegel, Reva B.

FEATURE CONTENTS INTRODUCTION I. LOCATING CARHART IN CONSTITUTIONAL POLITICS A. The Reach of Antiabortion Legislation: Carhart and Incrementalism B. The Rationale of Antiabortion Legislation: Carhart and Gender Paternalism C. Next Steps: Kennedy and the Court After Carhart II. CONSTITUTIONAL LAW: DIGNITY AND UNDUE BURDEN UNDER CASEY/CARHART A. Three Meanings of Dignity B. Vindicating Dignity Through the Undue Burden Framework C. Dignity Constraints in Casey's Application of the Undue Burden Framework 1. Dignity and the Use of Law To Regulate Informed Consent 2. Dignity Informed by History: The Use of Law To Enforce Family Roles III. DIGNITY AS A CONSTRAINT ON WOMAN-PROTECTIVE JUSTIFICATIONS FOR ABORTION RESTRICTIONS A. Woman-Protective Discourse and Counter-Signals in Carhart B. Ascriptive Autonomy and Dependence: Gender Paternalism Old and New C. Claims on Which Woman-Protective Justifications for Abortion Restrictions Rest CONCLUSION INTRODUCTION

It is commonly assumed that restrictions on abortion protect the unborn--but the Court's recent decision in Gonzales v. Carhart (1) introduces the possibility that a ban on methods of performing certain later abortions might protect women as well. This essay examines the social movement roots of the woman-protective antiabortion argument that appears in Carhart, and identifies constitutional limits on woman-protective abortion restrictions in the commitment to dignity that structures Carhart and Planned Parenthood v. Casey, (2) the case on which Carhart centrally relies.

Appeals to dignity recur in our case law and politics. Carhart appeals to human dignity as a reason to allow government to restrict abortion, (3) while Casey appeals to human dignity as a reason to prohibit government from interfering with a woman's decision whether to become a parent. (4) As I show, in substantive due process and equal protection cases constitutional protections for dignity vindicate, often concurrently, the value of life, the value of liberty, and the value of equality. (5) Attending to the usage of dignity in Casey and Carhart, we can see that a commitment to dignity structures the undue burden test itself, (6) which allows government to regulate abortion to demonstrate respect for the dignity of human life so long as such regulation also demonstrates respect for the dignity of women. (7)

This dignity-based reading of Casey and Carhart is responsive to the language of the cases, the constitutional principles on which they draw, and the social movement conflict out of which the cases have emerged. It supplies a framework for analyzing new, woman-protective justifications for regulating abortion discussed in Carhart, (8) which have been invoked to justify bans and informed consent restrictions in South Dakota and other states. (9) Ultimately, this dignity-based analysis identifies constitutional limitations on woman-protective antiabortion argument that emanate from the Constitution's due process and equal protection guarantees and the social norms and commitments they reflect. Exploring the roots, logic, and limits of the woman-protective antiabortion argument glimpsed in Carhart provides an occasion to appreciate how our Constitution enables community in conflict.

On its face, Carhart seems to be a case about protecting the unborn, not women. In upholding the federal Partial-Birth Abortion Ban Act (10) under Casey, (11) the Court emphasized congressional findings that the banned method had "disturbing similarity to the killing of a newborn infant" (12) and reasoned that the ban "expresses respect for the dignity of human life" (13) and would be useful in stimulating the moral education of the community. (14) But the Court also discussed an additional woman-protective justification for the ban that congressional findings never mention. (15) Carhart cites an amicus brief with affidavits suggesting that women need protection from making uninformed abortion decisions they might regret, observing:

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. (16) The significance of these observations is unclear. Carhart notes in passing that "[t]he State has an interest in ensuring so grave a choice is well informed," (17) yet the opinion shows no interest in how decisions about the banned procedure are actually made, discussing women as a "body" that is part of the Act's "anatomical landmarks" (18) rather than as a deliberative agent, and never mentioning the health reasons that would lead women or their doctors to elect the banned abortion method, or the consultative process through which such a decision is ordinarily reached. (19)

What are we to make of the Court's raising woman-protective considerations that Congress did not consider in enacting the Partial-Birth Abortion Ban Act? Why did the Court discuss deliberative errors in women's decision making about whether to carry a pregnancy to term in a case concerning restrictions on the procedures doctors use to perform abortion? Paradoxically, Carhart's abortion-regret discussion seems so out of place that it invites attention.

Gender-paternalist reasoning in Carhart is no accident. The passage reflects the spread of abortion restrictions that are woman-protective, as well as fetal-protective, in form and justification. The abortion ban South Dakota voters defeated in 2006 and the ban the state's voters will consider again this fall have been justified as protecting women, (20) as has South Dakota's "informed consent" statute that directs doctors to tell women not only that an abortion "will terminate the life of a whole, separate, unique, living human being," but also to describe the mental and physical health risks of abortion, including depression, suicide ideation, and sterility. (21) The informed consent statute and the past and proposed ban all rely on a state task force report that gave great weight to the abortion-regret affidavits contained in the amicus brief Justice Kennedy cited in Carhart. (22) For these reasons, the antiabortion movement reads Carhart as support for much more than the partial-birth abortion ban strategy. Leslee Unruh, who led South Dakota's 2006 effort to ban abortion on the grounds it would protect women, (23) greeted Carhart with delight: "I'm ecstatic.... It's like someone gave me $1 million and told me, 'Leslee, go shopping.' That's how I feel." (24) Carhart encouraged Unruh and the backers of South Dakota's 2006 ban to gather the signatures needed for a new abortion ban referendum that the state's voters will consider this fall. (25)

Carhart may have encouraged the current South Dakota abortion ban initiative, but reading Carhart in isolation is not sufficient to determine the proposed ban's constitutionality. Justice Kennedy wrote Carhart in revulsion at the "partial birth" procedure Congress banned and in estrangement from the understanding of Casey expressed in the Stenberg case. (26) But in writing Carhart, Justice Kennedy applies the Casey framework he helped author. Justice Kennedy's next steps cannot be adduced from Carhart alone--as even antiabortion advocates debating the wisdom of a South Dakota ban realize. (27) Absent dramatic new developments, the constitutionality of a ban based on gender-paternalist justifications for restricting abortion would be determined in a doctrinal framework that protects women's autonomy to decide whether to bear a child. As this line of inquiry makes clear, the gender-paternalist justification for restricting abortion is in deep tension with the forms of decisional autonomy Case), protects.

After Carhart, what principles govern restrictions on abortion, whether to protect women or the unborn? Attending to the ways Casey and Carhart reason about dignity illuminates core concerns and commitments of the case law. While Carhart invokes dignity as a reason for regulating abortion, (28) Casey invokes dignity as a reason for protecting women's abortion decisions from government regulation. (29) The normative valence of dignity varies in Case), Carhart, and other Fourteenth Amendment decisions that Justice Kennedy has written for the Court or on his own behalf. At different points in these decisions, dignity concerns the value of life, the value of liberty, and the value of equality. Once we attend to these differences in usage, we can see how a commitment to dignity structures the undue burden test itself, which allows government to regulate abortion to demonstrate respect for the dignity of human life so long as such regulation also demonstrates respect for the dignity of women. (30)

This essay's focus on the different meanings of "dignity" in the opinions of Justice Kennedy responds, of course, to his pivotal role in writing Casey and Carhart and his likely influence in charting the Court's abortion jurisprudence in the years ahead. Yet the analysis offered here is not predictive. While the essay begins in the positive register in an effort to understand how the abortion debate is shifting, it moves to the normative register, as it asks: what principled guidance does the commitment to dignity expressed in Casey, Carhart, and other Fourteenth Amendment decisions provide in determining how government may regulate abortion? Given the many twists and turns of abortion politics and the myriad pressures on the Court however composed, an exercise in prediction would not provide substantial guidance, and in all events would require a different set of analytical resources than this essay brings to bear on the question.

Why focus on the ways Justice Kennedy reasons about dignity in opinions written for the Court and on his own behalf? The abortion cases express their core precepts in the language of...