Carhart, Constitutional Rights, and the Psychology of Regret

Abstract

In Gonzales v. Carhart, the Supreme Court upheld the Partial Birth Abortion Ban Act of 2003. In so doing, the Court used the prospect of regret to justify limiting choice. Relying on empirical evidence documenting the four ways in which regret actually operates, this Essay critiques the Court's analysis on the ground that it reflects a fundamental misunderstanding of the psychology of regret. By exposing the Court's misunderstanding of this emotion, this Essay seeks to minimize the most significant risk created by the Carhart decision: that states will use the prospect of regret to justify additional constraints on the abortion right as well as other rights protected by the Constitution.

Keywords: abortion, privacy, regret, psychology, impact bias, behavioral law and economics