So Long Sandra, Hello Edith?

NRO: A Female Justice Should Hand Down Abortion Decisions

(National Review Online) 

And what is that most important work? For the conservatives, the most consequential shift would come in flipping the decision on Stenberg v. Carhart (2000) and upholding the federal ban on partial-birth abortion. Either one of the Ediths would guarantee that outcome; and in my own reckoning, such a decision on partial-birth abortion would virtually bring to an end the Roe v. Wade regime. For it would send up a signal to legislatures throughout the country that the Court was now open for business in sustaining many varieties of restriction on abortion. They might be measures to require the method of abortion most likely to preserve the life of the child, or measures actually to bar abortions late in pregnancy, or abortions ordered up because of the likely disabilities or afflictions of the child (e.g., Down's syndrome, spina bifida). Just whether or when Roe v. Wade is actually, explicitly overturned may cease to matter quite as much. For in the meantime, the public would have the chance to get used to a continuing train of laws restricting and regulating abortion. Ordinary people would be drawn in to talk again about the circumstances under which abortions may be justified. And that talk, among ordinary folk, will become more and more common because those they elect, sitting in local legislatures, will be enfranchised again to pass laws and make judgments on these matters.

If that sense of things is right, then it could make a notable difference if the decision that upholds the law on partial-birth abortion -- and the decision turning the law on abortion onto a different axis -- were written and announced by a woman. That is not to give in to the small-mindedness that is everywhere about us. For there are enough clichés abounding, tagging the right to abortion as "a woman's right." The cliché masks the fact that women, in the aggregate, have ever been more reserved about abortion than men, and that the strongest support for abortion has steadily come from middle- and upper-class white men. When the Court begins to explain again the grounds for protecting children in the womb, that account may produce a more lasting resonance if the explanation comes from a woman. At the same time, we could only run the risk of feeding the worst clichés in our politics if the only woman on the Court was Ruth Ginsberg, and if the Voice of the Woman on the Court spoke only in the accents of the Left. The commentators who have been clamoring these days for "balance" on the Court have not exactly been clamoring for a balance between women. And yet it would be no descent into a low politics to show that a woman’s perspective may express itself in an attachment to the moral tradition and to a conservative jurisprudence.

Sandra Day O'Connor was herself the prisoner of one cliché: She wrote persistently of "stereotypes" based on gender, and persistently discounted the possibility that behind the common perception were truths, grounded in nature. At this moment, with the possibility of a gentle but dramatic turn in the law, we should not discount the possibility that certain lessons may be taught with an authority at once firm and disarming when they are taught with the hand and voice of a woman. They may come, in this instance, from one or both of the Ediths in our lives.


Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and a senior fellow at the Ethics and Public Policy Center in Washington.