Twenty-five years later, why the Supreme Court's Casey decision is so wrong
The U.S. Supreme Court's Roe v. Wade decision made abortion legal nationwide in 1973. Fewer Americans know about the Court's Planned Parenthood v. Casey ruling, which reaffirmed but also significantly altered the Roe decision. This week marks its 25th anniversary.
Casey adopted an "undue burden" standard that, although nebulous, led it to uphold certain modest abortion limitations that the Court had previously, in the years following Roe, disallowed. Many abortion-reducing state laws have been enacted as a result.
Nevertheless, the Casey Court, by a 5-4 margin, upheld what it considered the "essential holding" of Roe. Abortion must be legal for any reason prior to fetal viability, the Court affirmed, and it must be legal for at least "health" reasons, broadly defined, even after viability.
Roe was widely criticized—both by scholars who support legalized abortion and by those who oppose it—as a constitutionally ridiculous ruling. Almost 20 years later, could Casey come up with some better reasons for holding that there is a right to abortion in the Constitution?
Casey offered two reasons. First, it claimed (as Roe also did) that the "liberty" protected by the Due Process Clause of the Fourteenth Amendment ("nor shall any state deprive any person of … liberty … without due process of law") includes a right to abortion.
Why? Well, that provision of the Constitution, the Court said, affords protection to "intimate and personal choices" such as the "decision whether to bear or beget a child." Grant that that's true. Why think there is a right to kill an already-existing human being by abortion? We are not, after all, talking about contraception or about sexual activity. We are not talking about the decision to procreate. We are talking about attacking and ending the life of another individual.
"The abortion decision," wrote Chief Justice William Rehnquist in dissent, "must therefore be recognized as … different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy."
The Court briefly tried to distinguish abortion from the countless acts that are not protected liberties. The liberty to abort is "unique," the Court reasoned, because "[t]he mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear." But the same is true of a breastfeeding single mother (among many other counterexamples). And killing human infants is not a constitutional right.
Almost unbelievably, the Court's "liberty" argument—the whole grounding for the claim that the Constitution mandates legalized abortion—has no more substance than that. "[A]fter more than 19 years of effort by some of the brightest (and most determined) legal minds in the country," quipped dissenting Justice Antonin Scalia, "the best the Court can do to explain how it is that the word 'liberty' must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice."
The weakness of the first reason for upholding Roe meant that the Court leaned heavily on its second reason. Even if Roe was wrong, Casey argued, it should be reaffirmed because of stare decisis, the idea that judges should generally adhere to past decisions.
But stare decisis doesn't mean that decisions should never be overruled. The Court, indeed, has undone many mistaken and harmful rulings. So, to defend its adherence to Roe, Casey put forward criteria for determining whether a past error should stand. The Court then concluded, according to its new doctrine, that Roe must be reaffirmed.
That conclusion, however, is not supported by "conventional stare decisis principles," explained Chief Justice Rehnquist. In fact, the criteria cited by the Court, when applied consistently, would invalidate some of Casey's own holdings (Casey, ironically, reversed parts of Roe and subsequent abortion decisions) as well as some past Court reversals that were obviously correct.
"[W]hen it becomes clear that a prior constitutional interpretation is unsound," the chief justice noted in his response, "we are obliged to reexamine the question."
The Court came up with one other reason to justify its stare decisis claim. Overruling Roe, Casey said, "would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy." Casey's reasoning went like this: If a past decision about a controversial issue was mistaken, and if many people want the Court to correct the mistake, then the Court should refuse to correct the mistake because doing so would make it seem like the Court is "surrender[ing] to political pressure."
Better to be wrong than to look bad. That's what the Court decided.
It's not hard to understand why legal scholar Michael Stokes Paulsen calls Casey "the worst constitutional decision of all time." Nothing proves how indefensible Roe v. Wade is like the Court's own attempt to defend it.
As Paulsen notes, though, it's not just legal errors that make a Court decision truly bad. It's the human consequences. Under the legal regime created by Roe, sustained by Casey, and persisting to this day, a whole class of innocent human beings is excluded from the basic protection of the law. Tens of millions of lives have been cut short.
Twenty-five years after Planned Parenthood v. Casey, the Supreme Court should finally follow the late Justice Scalia's advice. "We should get out of this area [of making abortion policy]," he concluded, "where we have no right to be, and where we do neither ourselves nor the country any good by remaining."