More on Regret and the Constitution

In response to Andy Koppelman's expression of skepticism, Richard Stith defended the constitutional significance of a woman's potential regret of her decision to have an abortion.  He argued, in part, that:

[Justice Kennedy] essentially (1) appeals precisely to the above "legitimate purpose" already noted by O'Connor, (2) adds the empirical claims (a) that the consequences of such an a posteriori discovery are far worse than usual in the case of an "intact D&E" abortion and (b)that (therefore?) most abortion doctors doing an "intact D&E" will not adequately inform their clients, and so (3) concludes that the State may require abortion doctors to use a procedure that is less potentially psychologically destructive to women.

Prof. Koppelman now comments:

Professor Stith lays out Kennedy's argument sympathetically, and his exposition is valuable. There is, of course, not a bit of evidence supporting propositions 2(a), 2(b), or 3. But even if there were -- and I suppose absolutely any scenario you can imagine will *sometimes* happen -- the obvious solution would be, as in Casey, to require that the woman be given the information and then allow her to decide what she wants to do. The unpleasantness of the intact D&E procedure will be one factor in her decision; so will the dangers to her of alternative procedures -- dangers which will vary considerably from one woman to another. (It is only in unusual cases that intact D&E is even arguably medically indicated, which is why the procedure is rare.) The really bold leap of logic is to say that because some people will eventually regret making this decision (and, presumably, will do so even if they are fully informed at the time of decision), the state can bar the decision altogether. That's the proposition that has radical and unacceptable implications.

It's also worth noting that, from the pro-life perspective, the whole regret point is makeweight. If in fact abortion is murder, then it should be prohibited whether or not women regret it afterward. The law is not in the habit of accommodating unrepentant murderers.