Another 5-4 decision

In news today, the Supreme Court upheld the Partial Birth Abortion Ban Act, stating that it does not violate a woman's constitutional right to an abortion. [Link]

The majority opinion, written by Justice Anthony Kennedy, said that the procedure threatens a woman's health -- if not physical, then mental and moral. He suggested that a pregnant woman who chooses abortion falls away from true womanhood.
While I also believe that abortions do cause mental distress in women, I disagree with the decision for a couple reasons.

First, and even Kennedy conceded this point, there is no reliable data on whether abortion in general, or the procedure prohibited by the ban, causes women emotional harm. Kennedy cited a brief filed by the Justice Foundation, which contained affadavits from 180 women. Sounds pretty good, but this "evidence" is anecdotal, not scientific or impartial; the Justice Foundation was anti-abortion even before getting the affadavits, so I don't believe this has any right to be in a judicial opinion.

Second, I disagree with Kennedy's use of "self-evidence." Similar to "conventional wisdom," it has its limitations, and is rooted not in objectivity but in the prevailing winds of public opinion. In 1776 it was "self-evident" that all men were created equal; in 1896 many whites felt it was "self-evident" that they weren't.

By saying it was "self-evident" that women would experience regret, severe depression, and loss of esteem, Kennedy bypassed the lack of evidence. By upholding the ban, Kennedy wrote, the outcome will advance "the state's interest in respect for life."

I have no issue with greater respect for life, but it's the applications that come from "respect for life" that unnerve me. Implications for the euthanasia, or the right to die, lie waiting in the wings.

The last thing that bothers me about the decision is that it was 5-4. Like so many other decisions these days (Bush v. Gore in 2000 was 5-4), this one shows how divided the Supreme Court is. And rather than looking like a final decision from the highest court, it comes off like a temporary decision until the next judicial appointment.

While the other two branches are embroiled in partisan messes, it would be nice if the court would be a bit more unified -- not only for the nation, but for the prestige of the court as well.