Professor Reva Siegel, whose work we’ve linked to before, weighs in on the Carhart decision in the NYT:
That abortion is bad for fetuses is a statement of the obvious. That it is bad for women, too, is a contested premise that nonetheless got five votes at the Supreme Court on Wednesday.
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The shift in the court’s discourse was “enormous,” said Prof. Reva B. Siegel of Yale Law School. It was, she said, “beyond Alice in Wonderland: criminalize abortion to protect women.”
Somewhat obscured by the news of Congress changing hands was South Dakota voters’ rejection of the SD legislature’s recently-passed abortion ban. While South Dakota citizens generally are considered socially very conservative, concerns that the abortion ban did not provide exceptions for rape, incest and health of the mother led to its demise. South Dakota faced the “Kang Problem”:
Kang [disguised as presidential candidate Bob Dole]: Abortions for all!
(Crowd boos)
Kang: Very well, no abortions for anyone!
(Crowd boos)
Kang: Hmm… Abortions for some, miniature American flags for others!
(Crowd cheers and waves miniature flags)“Citizen Kang,” Simpsons’ Treehouse of Horror VII
YOUTUBE has the episode HERE.
The South Dakota legislature’s abortion ban also signals a shift in the political and legal reasoning of the pro-life movement. The legislative task force’s report from which the abortion ban legislation was based spends as much ink on the issue of whether abortions harm women as a class, as it spends on the issue of a fetus’ personhood.
Even though the South Dakota law went down to defeat, it signals an important shift in pro-life rhetoric, moving from arguments that the fetus is a person and abortion is murder to arguments that no women willingly choose abortion unless they are tricked into it or their will is overborne, and that abortion hurts women. This strategy tries to flip the idea of women’s choice on its head: if abortion supporters argue that women have a right to choose to protect their interests, the new anti-abortion arguments counter that women’s choice isn’t free.
Balkin also links and refers to a fascinating and well-worth-reading forthcoming article in the Illinois Law Review by Yale Law Professor Reva Siegel. In a thorough critique of this new shift in pro-life rhetoric, Siegel argues that this shift in rhetoric isn’t actually “new” at all. Instead, it’s a return to 19th century notions of women as having less of a capacity to make choices, and that women’s place and role in society should be restricted to the private sphere of home, motherhood and family. (For a visual representation of the sole identity allowed for a woman under such a role restriction, refer to photograph at right.)