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The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J. 1641 (2008)

Abstract

In Gonzales v. Carhart, the Supreme Court upheld the Partial- Birth Abortion Ban Act, emphasizing that government may regulate the methods employed to perform an abortion “to show its profound respect for the life within the woman” 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. 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.

Date of Authorship for this Version

2008

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