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Most (& Least) Surprising Source of Criticism of Yesterday’s Decision

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Most: It pains me to link to them. Fox News (via Broadsheet):

“Congress is practicing medicine and the Court has decided to let it, in direct conflict with its own precedent. Five members of the Supreme Court have decided that Congress knows more about obstetrics and gynecology than the doctors in the American College of Obstetrics and Gynecology do,” says Susan Estrich for, hold onto your jaw, Fox News.

Not surprising: It was Susan Estrich. Still surprising, she was on Fox (balanced for once?).

Least surprising criticism? Dahlia Lithwick. She’s not a surprise, but damn she’s good.

With a stirring haiku about how “respect for human life finds an ultimate expression in the bond of love the mother has for her child,” the justice interpolates himself between every one of those mothers and every child she might ever bear. Without regard for the women who feel they made the right decision in terminating a pregnancy, he frets for those who changed their minds.

The core of Lithwicks’ article is Kennedy’s focus on the trope of the indecisive woman, who, in her half-witedness (as women are wont to be), gets an abortion and later regrets it. Lithwick rightly takes Kennedy to task for this paternalistic — not to mention faulty — assumption:

It’s hard to fathom why Kennedy has so much more sympathy for the women who changed their minds about abortions than for those who did not. His concern for Inconstant Females might be patronizing in any other jurist. Coming from him, it’s brilliantly ironic. Kennedy is, after all, America’s Hamlet. The man who famously worried that “sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line,” will long be remembered as the living incarnation of agony and indecision, And today he seamlessly rewrites his Stenberg dissent as a majority opinion that blasts his earlier Casey vote to its core.
I’m no psychologist but in light of today’s Gonzales opinion one has to wonder: Is all of Kennedy’s tender concern over those flip-flopping women really just some kind of weird misplaced justification for his flip-flopping self?

(cross-posted at AB&B)

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