Dignity and the Politics of Protection: Abortion Restrictions ...

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Reva b. siegel
Dignity and the Politics of Protection:
Abortion Restrictions Under Casey/Carhart
abstract. This essay on the law and politics of abortion analyzes the constitutional
principles governing new challenges to Roe. The essay situates the Court’s recent decision in
Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of
statutes designed to overturn Roe—exploring strategic considerations that lead advocates to favor
incremental restrictions over bans, and to supplement fetal-protective justifications with woman-
protective justifications for regulating abortion. The essay argues that a multi-faceted
commitment to dignity links Carhart and the Casey decision on which it centrally relies. Dignity
is a value that bridges communities divided in the abortion debate, as well as diverse bodies of
constitutional and human rights law. Carhart invokes dignity as a reason for regulating abortion,
while Casey invokes dignity as a reason for protecting women’s abortion decisions from
government regulation. This dignity-based analysis of Casey/Carhart offers principles for
determining the constitutionality of woman-protective abortion restrictions that are grounded in
a large body of substantive due process and equal protection case law. Protecting women can
violate women’s dignity if protection is based on stereotypical assumptions about women’s
capacities and women’s roles, as many of the new woman-protective abortion restrictions are.
Like old forms of gender paternalism, the new forms of gender paternalism remedy harm to
women through the control of women. The new woman-protective abortion restrictions do not
provide women in need what they need: they do not alleviate the social conditions that
contribute to unwanted pregnancies, nor do they provide social resources to help women who
choose to end pregnancies they otherwise might bring to term. The essay concludes by reflecting
on alternative—and constitutional—modes of protecting women who are making decisions
about motherhood.
author. Nicholas deB. Katzenbach Professor of Law, Yale University. I owe special thanks
to Bruce Ackerman, Jack Balkin, Michael Dorf, Heather Gerken, Martha Minow, Robert Post,
Judith Resnik, Jed Rubenfeld, Carol Sanger, Neil Siegel, Krishanti Vignarajah, and participants
in the faculty workshop at Yale Law School for commenting on the manuscript. It was a great
pleasure to explore the questions of this paper with Catherine Barnard, Jennifer Bennett, Madhu
Chugh, Kathryn Eidmann, Dov Fox, Sarah Hammond, Baolu Lan, and Justin Weinstein-Tull,
who have assisted me at different stages of research and writing.

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dignity and the politics of protection


feature contents
introduction
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i. locating carhart in constitutional politics
1706
A. The Reach of Antiabortion Legislation: Carhart and Incrementalism
1707
B. The Rationale of Antiabortion Legislation: Carhart and Gender
Paternalism 1712
C. Next Steps: Kennedy and the Court After Carhart 1733
ii. constitutional law: dignity and undue burden under
casey/carhart
1735
A. Three Meanings of Dignity
1736
B. Vindicating Dignity Through the Undue Burden Framework
1745
C. Dignity Constraints in Casey’s Application of the Undue Burden
Framework 1753
1. Dignity and the Use of Law To Regulate Informed Consent
1753
2. Dignity Informed by History: The Use of Law To Enforce Family
Roles 1763
iii. dignity as a constraint on woman-protective justifications
for abortion restrictions
1767
A. Woman-Protective Discourse and Counter-Signals in Carhart
1769
B. Ascriptive Autonomy and Dependence: Gender Paternalism Old and New 1773
C. Claims on Which Woman-Protective Justifications for Abortion
Restrictions Rest
1781
conclusion
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introduction
It is commonly assumed that restrictions on abortion protect the unborn—
but the Court’s recent decision in Gonzales v. Carhart1 introduces the possibility
that a ban on methods of performing certain later abortions might protect
women as well. This essay examines the social movement roots of the woman-
protective antiabortion argument that appears in Carhart, and identifies
constitutional limits on woman-protective abortion restrictions in the
commitment to dignity that structures Carhart and Planned Parenthood v.
Casey,2 the case on which Carhart centrally relies.

Appeals to dignity recur in our case law and politics. Carhart appeals to
human dignity as a reason to allow government to restrict abortion,3 while
Casey appeals to human dignity as a reason to prohibit government from
interfering with a woman’s decision whether to become a parent.4 As I show, in
substantive due process and equal protection cases constitutional protections
for dignity vindicate, often concurrently, the value of life, the value of liberty,
and the value of equality.5 Attending to the usage of dignity in Casey and
Carhart, we can see that a commitment to dignity structures the undue burden
test itself,6 which allows government to regulate abortion to demonstrate
respect for the dignity of human life so long as such regulation also
demonstrates respect for the dignity of women.7
This dignity-based reading of Casey and Carhart is responsive to the
language of the cases, the constitutional principles on which they draw, and the
social movement conflict out of which the cases have emerged. It supplies a
framework for analyzing new, woman-protective justifications for regulating
abortion discussed in Carhart,8 which have been invoked to justify bans and
informed consent restrictions in South Dakota and other states.9 Ultimately,
this dignity-based analysis identifies constitutional limitations on woman-

1.
127 S. Ct. 1610 (2007).
2. 505 U.S. 833 (1992).
3. Carhart, 127 S. Ct. at 1633.
4. Casey, 505 U.S. at 851.
5. See infra Section II.A.
6. See
Casey, 505 U.S. at 876 (“In our view, the undue burden standard is the appropriate
means of reconciling the State’s interest with the woman’s constitutionally protected
liberty.”).
7. See infra Section II.B.
8. See
infra text accompanying notes 16-17.
9. See infra Sections I.B. & III.C.
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protective antiabortion argument that emanate from the Constitution’s due
process and equal protection guarantees and the social norms and
commitments they reflect. Exploring the roots, logic, and limits of the woman-
protective antiabortion argument glimpsed in Carhart provides an occasion to
appreciate how our Constitution enables community in conflict.
On its face, Carhart seems to be a case about protecting the unborn, not
women. In upholding the federal Partial-Birth Abortion Ban Act10 under
Casey,11 the Court emphasized congressional findings that the banned method
had “disturbing similarity to the killing of a newborn infant”12 and reasoned
that the ban “expresses respect for the dignity of human life”13 and would be
useful in stimulating the moral education of the community.14 But the Court
also discussed an additional woman-protective justification for the ban that
congressional findings never mention.15 Carhart cites an amicus brief with

10. Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531 (Supp. IV 2005).
11. See
Carhart, 127 S. Ct. at 1632 (reasoning that the ban did not “impose[] a substantial
obstacle to late-term, but previability, abortions”); infra notes 211-214 (discussing Carhart’s
adherence to the Casey decision).
12. Carhart, 127 S. Ct. at 1633 (quoting 18 U.S.C. § 1531 note (Supp. IV 2000)).
13. Carhart, 127 S. Ct. at 1633.
14. “The State’s interest in respect for life is advanced by the dialogue that better informs the
political and legal systems, the medical profession, expectant mothers, and society as a
whole of the consequences that follow from a decision to elect a late-term abortion.” Id. at
1634.
15. The reasons Congress gave for banning certain abortion procedures concerned the
protection of the unborn—not defects in women’s deliberative process. See 18 U.S.C. § 1531
(Supp. IV 2005). When Congress debated the merits of the Partial-Birth Abortion Ban Act,
it did not consider the idea that late-term abortions result in psychological harm to women.
See Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, § 2, 117 Stat. 1201, 1201-06
(codified at 18 U.S.C. § 1531 note (Supp. V 2005)) (factual findings); H.R. REP. NO. 108-58,
at 34-39 (2003).
Congress did consider, in some detail, the potential physical harms of later abortions.
See Partial-Birth Abortion Ban Act of 2003 § 2, 117 Stat. at 1201-06; H.R. REP. NO. 108-58, at
34-39. Congress made no mention, however, of the psychological harm caused by abortions.
The Nebraska District Court opinion in Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb.
2004)—the district court opinion in Gonzales v. Carhart—confirms this view. The lengthy
269-page decision in Carhart v. Ashcroft summarized the entire congressional record without
discussing the prevention of psychological harm as a purpose of the statute. Id. at 822–52.
Nor do appellate decisions record such a purpose. See Nat’l Abortion Fed’n v. Gonzales, 437
F.3d 278 (2d Cir. 2006), vacated, 224 Fed. App’x 88 (2d Cir. 2007); Planned Parenthood
Fed’n of Am., Inc. v. Gonzales, 435 F.3d 1163 (9th Cir. 2006), rev’d sub nom. Gonzales v.
Carhart, 127 S. Ct. 1610 (2007); Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), rev’d 127
S. Ct. 1610 (2007).
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affidavits suggesting that women need protection from making uninformed
abortion decisions they might regret, observing:
While we find no reliable data to measure the phenomenon, it seems
unexceptionable to conclude some women come to regret their choice
to abort the infant life they once created and sustained. See Brief for
Sandra Cano et al. as Amici Curiae in No. 05-380, pp. 22-24. Severe
depression and loss of esteem can follow.16
The significance of these observations is unclear. Carhart notes in passing that
“[t]he State has an interest in ensuring so grave a choice is well informed,”17
yet the opinion shows no interest in how decisions about the banned procedure
are actually made, discussing women as a “body” that is part of the Act’s
“anatomical landmarks”18 rather than as a deliberative agent, and never
mentioning the health reasons that would lead women or their doctors to elect
the banned abortion method, or the consultative process through which such a
decision is ordinarily reached.19

What are we to make of the Court’s raising woman-protective
considerations that Congress did not consider in enacting the Partial-Birth
Abortion Ban Act? Why did the Court discuss deliberative errors in women’s
decision making about whether to carry a pregnancy to term in a case

The woman-protective argument that appears in Carhart seems to have entered the case
not through findings of Congress or the lower courts, but rather through amicus briefs filed
in the Supreme Court, including the brief filed by the Justice Foundation on behalf of
Sandra Cano, see Brief of Sandra Cano, the Former “Mary Doe” of Doe v. Bolton, and 180
Women Injured by Abortion as Amici Curiae in Support of Petitioner at 22, Carhart, 127 S.
Ct. 1610 (No. 05-380), 2006 WL 1436684 [hereinafter Brief of Sandra Cano et al.], as well as
briefs of several other pro-life organizations, see Reva B. Siegel, David C. Baum Memorial
Lecture, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion
Restrictions, 2007 U. ILL. L. REV. 991, 1025-26 & n.142 (surveying woman-protective
antiabortion argument in amicus briefs filed in Carhart).
16. Carhart, 127 S. Ct. at 1634; see infra note 108 and accompanying text.
17. Carhart, 127 S. Ct. at 1634.
18. Id.
at 1627 (internal citations omitted):
Second, the Act’s definition of partial-birth abortion requires the fetus to be
delivered “until, in the case of a head-first presentation, the entire fetal head is
outside the body of the mother, or, in the case of breech presentation, any part of
the fetal trunk past the navel is outside the body of the mother.” The Attorney
General concedes, and we agree, that if an abortion procedure does not involve
the delivery of a living fetus to one of these “anatomical ‘landmarks’”—where,
depending on the presentation, either the fetal head or the fetal trunk past the
navel is outside the body of the mother—the prohibitions of the Act do not apply.
19. See infra note 110 and accompanying text.
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concerning restrictions on the procedures doctors use to perform abortion?
Paradoxically, Carhart’s abortion-regret discussion seems so out of place that it
invites attention.
Gender-paternalist reasoning in Carhart is no accident. The passage reflects
the spread of abortion restrictions that are woman-protective, as well as fetal-
protective, in form and justification. The abortion ban South Dakota voters
defeated in 2006 and the ban the state’s voters will consider again this fall have
been justified as protecting women,20 as has South Dakota’s “informed

20. For the abortion ban that South Dakota voters will consider in the 2008 election, see South
Dakota Initiated Measure 11 - Regulate the Performance of Certain Abortions, To Reinstate
the Prohibition Against Certain Acts Causing the Termination of the Life of an Unborn
Human Being and To Prescribe a Penalty Therefore (2008), available at
http://www.sdsos.gov/electionsvoteregistration/electvoterpdfs/2008/
2008regulateperformanceofabortions.pdf. The ban renders any person who “employs any . .
. means, with the intent of causing the termination of an unborn human being . . . guilty of .
. . a Class 4 felony.” Id. § 2. The proposed ban has exceptions for rape, incest, and maternal
health, but “the exceptions for rape and incest would require law enforcement authorities to
be notified,” and “the exception for a mother’s health would require extensive
documentation from doctors who would be forced to make swift choices under risk of felony
charges.” Monica Davey, South Dakota to Revisit Restrictions on Abortion, N.Y. TIMES, Apr. 26,
2008, at A14. (“Even though there are technically exceptions this time, the proposed law
would make it nearly impossible to get an abortion.”) (quoting Sarah Stoesz, President,
Planned Parenthood Minnesota, North Dakota and South Dakota).
Woman-protective arguments for banning abortion in South Dakota are set forth in
over half of a lengthy state task force report. See SOUTH DAKOTA TASK FORCE TO STUDY
ABORTION, REPORT OF THE SOUTH DAKOTA TASK FORCE TO STUDY ABORTION (2005),
available at http://www.voteyesforlife.com/docs/Task_Force_Report.pdf [hereinafter
SOUTH DAKOTA TASK FORCE REPORT]. See generally Siegel, supra note 15 (analyzing
arguments of the Report in detail). Vote Yes for Life, the organization leading the initiative
drive for the new 2008 ban, posts the South Dakota Task Force Report prominently on its
Web site, as well as endorsements that invoke woman-protective arguments on behalf of the
proposed ban. For an account of how the authors of the 2008 ban relied on the 2005 South
Dakota Task Force Report, see Vote Yes for Life, Endorsements for the Initiative,
http://www.voteyesforlife.com/initiative.html#SamuelCasey (endorsement of Samuel B.
Casey) (last visited May 5, 2008). Among the endorsements invoking woman-protective
justifications are statements from the following: Jack Willke, former director of National
Right to Life Committee (“My total experience has also long since convinced me that
abortion certainly kills a living human, but it is also very dangerous and damaging to
mothers and to many fathers.”); American Association of Pro Life Obstetricians and
Gynecologists (“The medical literature attests to a rather marked increased incidence, after
elective abortion, of suicide. Depression, substance abuse, and relational difficulties are
increased. . . . There is also evidence of a future increase in breast cancer incidence,
particularly from the loss of the ‘protective effect’ against breast cancer conferred on the
woman by a full term pregnancy.”); Frank Pavone, Priests for Life (“As National Pastoral
Director of Rachel’s Vineyard, I see every day the damage abortion does to the mothers and
fathers of aborted children.”); Alive Women with a Passion (“[A]bortion is harmful not
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consent” statute that directs doctors to tell women not only that an abortion
“will terminate the life of a whole, separate, unique, living human being,” but
also to describe the mental and physical health risks of abortion, including
depression, suicide ideation, and sterility.21 The informed consent statute and
the past and proposed ban all rely on a state task force report that gave great
weight to the abortion-regret affidavits contained in the amicus brief Justice
Kennedy cited in Carhart.22 For these reasons, the antiabortion movement
reads Carhart as support for much more than the partial-birth abortion ban
strategy. Leslee Unruh, who led South Dakota’s 2006 effort to ban abortion on
the grounds it would protect women,23 greeted Carhart with delight: “I’m

only to the tiny baby, but also to the woman and others involved. The so called freedom to
choose that Planned Parenthood offers is actually bondage. If you are in bondage from an
abortion or maybe even multiple abortions, please know that there is support for you. There
is healing and forgiveness and a place of rest for you.”). See Vote Yes For Life, Endorsements
for the Initiative, http://www.voteyesforlife.com/initiative.html (last visited May 5, 2008)
(featuring endorsements from the above).
21. S.D.C.L. §
34-23A-10.1(1)(b), (e) (West 2007) (requiring physician to communicate to
patient “[a] description of all known medical risks of the procedure and statistically
significant risk factors to which the pregnant woman would be subjected, including: (i)
Depression and related psychological distress; (ii) Increased risk of suicide ideation and
suicide; . . . (iv) All other known medical risks to the physical health of the woman,
including the risk of infection, hemorrhage, danger to subsequent pregnancies, and
infertility”). During production of this essay, the Eighth Circuit vacated a preliminary
injunction that raised First Amendment objections to enforcement of this statute. See
Planned Parenthood Minn. v. Rounds, 530 F.3d 724 (8th Cir. 2008).
22. Operation Outcry, an initiative led by the conservative Justice Foundation in Texas, initially
collected these affidavits for use in litigation that sought to reopen the Roe and Doe cases. See
Operation Outcry: A Project of the Justice Foundation, http://www.operationoutcry.org/
(last visited Feb. 4, 2007). The affidavits were then presented to the South Dakota Task
Force. See SOUTH DAKOTA TASK FORCE REPORT, supra note 20, at 21-22 (“We find the
testimonies of these women an important source of information about the way consents for
abortions are taken . . . .”); see also infra note 103 and accompanying text (quoting passages
of the Report that credit affidavits as representative of “post-abortive” women). Thereafter
the affidavits were offered to the Supreme Court via an amicus brief in the Carhart
litigation, and to other state legislatures. See Brief of Sandra Cano et al., supra note 15, at 16-
21, 22 n.80, app. at 11-160 (referencing the South Dakota Task Force Report and including
excerpts from the affidavits); Reva B. Siegel, Brainerd Currie Lecture, The Right’s Reasons:
Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J.
1461 (tracing the use of the affidavits in the South Dakota Task Force Report, the Supreme
Court, antiabortion litigation efforts to reopen Roe and Doe, and in state legislative
hearings). Leaders of the new abortion ban initiative in South Dakota prominently rely on
the 2005 State Task Force Report. See infra note 101.
23. Monica Davey, National Battle over Abortion Focuses on South Dakota Vote, N.Y. TIMES, Nov.
1, 2006, at A5 (quoting Leslee Unruh) (“I refuse to show pictures of dead babies. . . . That’s
what the old way was, and that’s why they were losing all these years.”).
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ecstatic. . . . It’s like someone gave me $1 million and told me, ‘Leslee, go
shopping.’ That’s how I feel.”24 Carhart encouraged Unruh and the backers of
South Dakota’s 2006 ban to gather the signatures needed for a new abortion
ban referendum that the state’s voters will consider this fall.25
Carhart may have encouraged the current South Dakota abortion ban
initiative, but reading Carhart in isolation is not sufficient to determine the
proposed ban’s constitutionality. Justice Kennedy wrote Carhart in revulsion at
the “partial birth” procedure Congress banned and in estrangement from the
understanding of Casey expressed in the Stenberg case.26 But in writing Carhart,
Justice Kennedy applies the Casey framework he helped author. Justice
Kennedy’s next steps cannot be adduced from Carhart alone—as even
antiabortion advocates debating the wisdom of a South Dakota ban realize.27
Absent dramatic new developments, the constitutionality of a ban based on
gender-paternalist justifications for restricting abortion would be determined
in a doctrinal framework that protects women’s autonomy to decide whether to
bear a child. As this line of inquiry makes clear, the gender-paternalist
justification for restricting abortion is in deep tension with the forms of
decisional autonomy Casey protects.
After Carhart, what principles govern restrictions on abortion, whether to
protect women or the unborn? Attending to the ways Casey and Carhart reason
about dignity illuminates core concerns and commitments of the case law.
While Carhart invokes dignity as a reason for regulating abortion,28 Casey
invokes dignity as a reason for protecting women’s abortion decisions from
government regulation.29 The normative valence of dignity varies in Casey,
Carhart, and other Fourteenth Amendment decisions that Justice Kennedy has
written for the Court or on his own behalf. At different points in these
decisions, dignity concerns the value of life, the value of liberty, and the value

24. When the decision came down, Unruh “spent the day conferring with lawyers on how to
leverage the ruling to maximum effect in the states. ‘We’re brainstorming, and we’re having
fun,’ she said.” Stephanie Simon, Joyous Abortion Foes To Push for New Limits, L.A. TIMES,
Apr. 19, 2007, at A25.
25. See
supra note 20 and infra note 268.
26. Kennedy helped craft Casey’s undue burden standard, and then broke with his coauthors
over its application to Nebraska’s partial birth abortion ban in Stenberg v. Carhart, 530 U.S.
914 (2000), and to the federal ban in Gonzales v. Carhart. In writing Carhart with Casey’s
dissenters and two new Justices appointed by a president who campaigned against Roe,
Justice Kennedy sought to correct what he viewed as Stenberg’s mistakes.
27. See Section III.C.
28. See infra note 122 and accompanying text.
29. See infra notes 131-132 and accompanying text.
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of equality. Once we attend to these differences in usage, we can see how a
commitment to dignity structures the undue burden test itself, which allows
government to regulate abortion to demonstrate respect for the dignity of
human life so long as such regulation also demonstrates respect for the dignity
of women.30
This essay’s focus on the different meanings of “dignity” in the opinions of
Justice Kennedy responds, of course, to his pivotal role in writing Casey and
Carhart and his likely influence in charting the Court’s abortion jurisprudence
in the years ahead. Yet the analysis offered here is not predictive. While the
essay begins in the positive register in an effort to understand how the abortion
debate is shifting, it moves to the normative register, as it asks: what principled
guidance does the commitment to dignity expressed in Casey, Carhart, and
other Fourteenth Amendment decisions provide in determining how
government may regulate abortion? Given the many twists and turns of
abortion politics and the myriad pressures on the Court however composed, an
exercise in prediction would not provide substantial guidance, and in all events
would require a different set of analytical resources than this essay brings to
bear on the question.
Why focus on the ways Justice Kennedy reasons about dignity in opinions
written for the Court and on his own behalf? The abortion cases express their
core precepts in the language of dignity. Dignity is a value that bridges
communities. It is a value to which opponents and proponents of the abortion
right are committed, in politics and in law. It is a value that connects cases
concerning abortion to other bodies of constitutional law, and connects
decisions concerned with liberty to decisions concerned with equality. It is a
value that guides interpretation of other national constitutions and of human
rights law.31

30. See infra Section II.B.
31. See Judith Resnik, Courts and Democracy: The Production and Reproduction of
Constitutional Conflict 9 (unpublished manuscript, 2007) (“By considering the analytic
bases of the judgments from these various jurisdictions, one can see the discussion around
abortion move beyond the frameworks of privacy, liberty, and equality, which are the
frequently proffered premises for supporting women’s abortion rights in the United States.
The issue of reproduction is located in broad sets of questions related to women’s health and
work, as the problem is addressed in terms of ‘human rights‚’ to health and safety; to
nondiscrimination on the basis of race, age, and gender; to economic opportunity; to
freedom of speech, conscience, and religion; to autonomy and dignity.”); infra Section II.A;
see also Rebecca J. Cook & Susannah Howard, Accommodating Women’s Differences Under the
Women’s Anti-Discrimination Convention, 56 EMORY L.J. 1039 (2007); Vicki C. Jackson,
Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse,
65 MONT. L. REV. 15 (2004).
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dignity and the politics of protection
Dignity can do all this good work because it is a compelling and
multifaceted concept. It is no doubt for these reasons that dignity figures so
frequently and consequentially in the decisions of a Justice who is now playing
a leading role in the development of American constitutional law. Examining
the complex commitment to dignity shaping these decisions is not, by itself,
sufficient for predictive or comparative analysis. But because dignity-based
analysis of Casey and Carhart is informed by the constitutional understanding
of the Justice who is in dialogue with competing communities in the abortion
debate, it supplies a principled basis for reasoning about the question facing
the Court and the nation that is concerned with bridging this normative divide.
Positive and normative analysis of contending claims on human dignity in the
abortion debate offers a glimpse of how our Constitution enables community
as it structures conflict.
Part I begins by locating constitutional law in constitutional politics,
considering the social movement struggles that led to Carhart and are shaping
the next generation of abortion restrictions that courts will confront. Carhart
grew out of debates in the antiabortion movement over the reach and rationale
of laws designed to challenge Roe. Should the movement attack abortion
through absolute or incremental restrictions, for example, through categorical
bans or through procedural obstacles depicted as “informed consent”
regulations? Should the movement justify such restrictions as protecting the
unborn or women? Examining tactical and moral debates over the reach and
rationale of laws designed to challenge Roe illuminates important aspects of the
Carhart opinion and the next round of test cases designed to probe its meaning.
As importantly, this examination of constitutional politics shows how the
shape and justification of abortion restrictions has evolved with struggle over
Roe. Over the years, in an effort to persuade decision makers who support Roe,
Roe’s adversaries have begun to draw on the values the abortion right
vindicates in order to attack Roe. Antiabortion strategists have fused talk of
post-abortion harms, which originated at movement crisis pregnancy centers,
with public health and feminist discourse. Those who would ban abortion now
assert that restrictions on abortion protect women’s health and freedom and
promote their “informed consent.” The strategy is designed to erode the
protections for women’s decisions set forth in Roe and Casey, and the passing
discussion of postabortion regret in Carhart suggests it may yet succeed.
For what reasons may the government regulate abortion? Are there
constitutional limits on woman-protective antiabortion argument that are not
expressed in Carhart? Part II of the essay analyzes this question of
constitutional law by examining the commitment to dignity in Carhart, Casey,
and other of Justice Kennedy’s Fourteenth Amendment opinions. In upholding
the Partial-Birth Abortion Ban Act, Carhart emphasized the importance of
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