Letting The Misogynist Cat Out of The Bag
I have a post over at TAPPED noting that Kennedy’s opinion in Carhart II was a “gaffe” in the Kinsley sense of telling the truth. And in this case, the truth was particularly inconvenient for the anti-Roe pro-choice position. What I had in mind in particular was this claim in Rosen’s mock opinion in What Roe v. Wade Should Have Said:
The only evidence we have of the purpose of the legislators who passed the abortion laws (as opposed to the doctors who lobbied for them) is their text, and that text clearly suggests that the primary purpose of the laws was to protect fetal life…We must, I think, take them at face value; and search for hidden purposes to enforce stereotypes would be empirically fraught and hard to sustain.
I agree that it’s the text, as opposed to the subjective intention of legislators, that is most important, but (as Balkin’s mock opinion demonstrated in detail) the assertion that it’s clear from the text that the sole purpose of these laws is to protect fetal life is exceptionally unconvincing. The case of “partial-birth” abortion bans make this especially clear. It’s hardly necessary to search for “hidden motives” when the anti-choice lobby enthusiastically supports legislation that can injure women but doesn’t significantly protect fetal life even in theory. If Kennedy had been strategically savvy enough to not mention this it wouldn’t have changed this fact, and the only good thing to come from Carhart II is that is makes the extent to which debates about abortion are debates about 19th and 21st century conceptions of women very clear.