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Court's abortion ruling revives 19th-century paternalism

The Baltimore Sun

BOSTON -- Let us return to that wonderful yesterday when the U.S. Supreme Court ruled that Myra Bradwell couldn't be two things at the same time: a lawyer and a woman.

On that occasion, Justice Joseph P. Bradley left a perfect entry for the Father Knows Best time capsule, circa 1873: "Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life."

Justice Bradley went on to explain why this decision couldn't be in the hands of the woman. "The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." Myra Bradwell had to be protected from her unwomanly ambitions ... by men.

When you bring this 19th-century gem into the light of our 21st-century lives, it glistens like a genuine relic. Want to veto your wife's decisions on the grounds that you know what's best for her? Well, those days are over. Or are they?

There was a small relic hidden in the Supreme Court's recent decision upholding the ban on so-called partial-birth abortions. For the first time, Justice Anthony M. Kennedy justified banning an abortion procedure not only to protect the fetus but to protect the woman. "While we find no reliable data to measure the phenomenon," he said, "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained."

Reliable data or not, the "regrets" of these women became another reason to ban a procedure for all women. The state could protect her, the justice implied, from her own ill-informed, misguided decision.

For this argument, Justice Kennedy reached down into the legal briefs of anti-abortion activists who have been honing a political strategy based on the idea that abortion hurts women.

This argument had its first incarnation in attempts - repeatedly debunked - to link abortion to breast cancer. Now anti-abortionists have fabricated a mental illness, "post-abortion syndrome," which has been debunked by study after study.

Nevertheless, it reappears in testimonies from women whose stories about their trauma are spread throughout state legislatures considering all sorts of new restrictions. Abortion is inherently harmful to women, their argument goes, because it violates a woman's true "nature," her role as a mother.

I don't deny that some women feel regret after an abortion. More than 30 million American women have had abortions since Roe v. Wade. Each unwanted pregnancy comes with its own story of a failed contraceptive or failed relationship, of an economic or health crisis. Some women feel coerced by men or by parents. Surely thousands have suffered from the crisis they faced and the decision they made.

But to this range of individual dilemmas, the pro-life argument offers only one solution: criminalize abortion. To this range of life stories, it offers only one kind of "help": Take the decision out of her hands. Now their argument has been folded into a Supreme Court decision.

I don't believe that Justice Kennedy is Justice Bradley's clone. In other abortion and gay rights cases, he has agreed that the court's obligation is "to define the liberty of all, not to mandate our own moral code." But this time he's stuck his toe into some very treacherous waters.

It's amazing how quickly the current can shift and the waters flow ... backward.

Ellen Goodman is a columnist for The Boston Globe. Her column appears Fridays in The Sun. Her e-mail is

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