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A Man In Anthony Kennedy’s Position Can Afford to be Made to Look Ridiculous


The Supreme Court acted in its last term like a Court secure in the knowledge that it was headed for a full and lasting neoconfederate takeover, with Anthony Kennedy fully on Team Trump.  The last week will in particular live in infamy, what with Korematsu II  and effectively reading Sections 2 and 3 out of the Voting Rights Act after having taken care of Section 4.

One difficult question to answer, however, is what the single most ridiculous “First Amendment” ruling of the last week has been. For sure, “there is a First Amendment right to free ride” is a strong entry. But we shouldn’t neglect another case from Tuesday that indicates the Court’s hostility to abortion rights.

The Court’s holding the requirements that licensed crisis pregnancy centers provide information about the availability of subsidized family planning services and that unlicensed ones disclose that they are not medical facilities is problematic enough — given the ubiquity of disclosure requirements this is going to produce a wave of litigation with no coherent guidance provided by the Supreme Court. But in the context of abortion, it’s particularly egregious:

But the decision becomes even more problematic when it comes to abortion.

According to the court, doctors can be forced to read anti-abortion messages they are unlikely to agree with in the guise of presenting medical information, and women can be forced to listen before being allowed to obtain a medical procedure they desire. But merely requiring crisis pregnancy centers to post information about the availability of family planning services is unconstitutional.

How does the court explain this glaring contradiction? According to Thomas, the California requirements are different because they are not related to a “medical procedure.” “Really?” responded a seemingly incredulous Breyer in his dissent. Maintaining a pregnancy to term and childbirth both entail substantial health risks and generally require significant medical care and testing, and indeed childbirth is 14 times more likely to be fatal for a woman than obtaining an abortion. “Health considerations,” Breyer concludes, “do not favor disclosure of alternatives and risks associated with the latter but not those associated with the former.”

The decision, in other words, cannot be defended on the basis of the five judges’ support for the principles of the First Amendment – it simply places pro-life speech in a favored position. In the name of content-neutrality – the obligation not to favor one viewpoint over another –  the court is being anything but neutral.

It’s worth quoting Breyer’s unanswerable response in full:

The majority contends that the disclosure here is unrelated to a “medical procedure,” unlike that in Casey, and so the State has no reason to inform a woman about alternatives to childbirth (or, presumably, the health risks of childbirth). Ante, at 11. Really? No one doubts that choosing an abortion is a medical procedure that involves certain health risks.  But the same is true of carrying a child to term and giving birth. That is why prenatal care often involves testing for anemia, infections, measles, chicken pox, genetic disorders, diabetes, pneumonia, urinary tract infections, preeclampsia, and hosts of other medical conditions. Childbirth itself, directly or through pain management, risks harms of various kinds, some connected with caesarean or surgery-related deliveries, some related to more ordinary methods of delivery. Indeed, nationwide “childbirth is 14 times more likely than abortion to result in” the woman’s death.Health considerations do not favor disclosure of alternatives and risks associated with the latter but not those associated with the former.

In any case, informed consent principles apply more broadly than only to discrete “medical procedures.” Prescription drug labels warn patients of risks even though taking prescription drugs may not be considered a “medical procedure.” In California, clinics that screen for breast cancer must post a sign in their offices notifying patients that, if they are diagnosed with breast cancer, their doctor must provide “a written summary of alternative efficacious methods of treatment,” a notification that does not relate to the screening procedure at issue. If even these disclosures fall outside the majority’s cramped view of Casey and informed consent, it undoubtedly would invalidate the many other disclosures that are routine in the medical context as well.

But wait! There’s a punchline. Here is the last overwrought paragraph Anthony Kennedy will ever write for the Supreme Court:

The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.”  It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.

The claim that requirements that centers that create the impression that they’re medical facilities disclose that they are not in fact medical facilities represent RELENTLESS AUTHORITARIANISM while requirements that doctors read and women listen to pro-life propaganda are just fine was ridiculous enough to read on Tuesday. It is much more ridiculous now that he’s handed a Supreme Court seat to Donald Trump. One thing I can assure Justice Kennedy is that he will not be remembered as a staunch opponent of authoritarianism.

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