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The Empirically Baseless Paternalism of Anthony M. Kennedy

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Anthony Kennedy, in his appalling opinion for the Court in Carhart II, asserted:

While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude that some women shouldn’t worry their pretty little heads about manly medical treatment come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.

The APA, however, has found that to the extent that the claim is relevant it’s false:

…the American Psychological Association has determined (PDF) that “abortion hurts women” rhetoric is bunk. The APA, which was to have adopted the new standard this morning, says in its draft language “the relative risks of mental health problems are no greater than the risks among women who deliver an unplanned pregnancy.” In other words, forcing women to carry through with an unplanned pregnancy is just as risky for mental health as it is to have an abortion.

And when you combine this with the greater physical risks of pregnancy, the rationale for abortion regulation or criminalization based on protecting women’s health vanishes entirely. And despite some claims that Kennedy was somehow going off the reservation with his embrace of the new paternalism, without such assertions bans on “partial birth” abortion have no rational connection to any legitimate state interest whatsoever.

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