Even Justice Kennedy May Have Regrets

Technorati Tags: Abortion rights

Andrew Koppelman:

"Marry, and you will regret it. Do not marry, and you will also regret it. Marry or do not marry, you will regret it either way. Whether you marry or you do not marry, you will regret it either way. Laugh at the stupidities of the world, and you will regret it; weep over them, and you will also regret it. Laugh at the stupidities of the world or weep over them, you will regret it either way. Whether you laugh at the stupidities of the world or you weep over them, you will regret it either way. Trust a girl, and you will regret it. Do not trust her, and you will also regret it. Trust a girl or do not trust her, you will regret it either way. Whether you trust a girl or do not trust her, you will regret it either way. Hang yourself, and you will regret it. Do not hang yourself, and you will also regret it. Hang yourself or do not hang yourself, you will regret it either way. Whether you hang yourself or do not hang yourself, you will regret it either way."

Soren Kierkegaard's observation, just quoted, is pertinent to Justice Kennedy's observation, in Gonzales v. Carhart, that abortion methods may be restricted because "some women come to regret their choice to abort the infant life they once created and sustained," possibly resulting in "[s]evere depression and loss of esteem." Justice Ginsberg responds by citing peer-reviewed studies showing that women who abort show no higher rate of psychiatric disorder than those who carry pregnancy to term. But this doesn't really disprove Kennedy's point. Kennedy admits that he has "no reliable data to measure the phenomenon," but thinks that it is "unexceptionable" that this story is true of "some women." All he needs to sustain his claim is anecdotal evidence that this kind of thing sometimes happens.

But what is the major premise of this argument? That constitutional liberties can be restricted if it sometimes happens that someone regrets exercising the liberty in a given way? It's hard to imagine any liberty that no one ever regrets. Some people who criticize actions of the government later wish that they had kept their mouths shut. Some criminal suspects regret that they didn't confess everything when the police first interrogated them. Some of the slaves freed by the Thirteenth Amendment were old and infirm, and some of them probably regretted leaving the plantation.

It is hard to imagine the boundaries of this principle as Kennedy has stated it. He cannot possibly mean it. One can only hope that, at some point, contemplating what he has written, he regrets it.

Cross-posted at Shakesville.