Surely, one may devoutly hope, Justice Scalia exaggerates. In his dissent from Planned Parenthood v. Casey (joined by Rehnquist, Thomas, and White), he develops the analogy between this case and the infamous Dred Scott decision of 1857. What happened then is, in ways ominously parallel, happening now. Claiming to “resolve” a question in passionate dispute, the Court simply takes one side and demands that the nation follow. It did not work then, Scalia argues, and it will not work now.
For years, some of us have been writing about the “culture wars” in which our society is embroiled. We are two nations: one concentrated on rights and laws, the other on rights and wrongs; one radically individualistic and dedicated to the actualized self, the other communal and invoking the common good; one viewing law as the instrument of the will to power and license, the other affirming an objective moral order reflected in a Constitution to which we are obliged; one given to private satisfaction, the other to familial responsibility; one typically secular, the other typically religious; one elitist, the other populist. The strokes are admittedly broad, but the reality is evident enough to anyone who attends to the increasingly ugly rancor that dominates and debases our public life. And, of course, for many Americans the conflicts in the culture wars run through their own hearts.
No other question cuts so close to the heart of the culture wars as the question of abortion. The abortion debate is about more than abortion. It is about the nature of human life and community. It is about whether rights are the product of human assertion or the gift of “Nature and Nature's God.” It is about euthanasia, eugenic engineering, and the protection of the radically handicapped. But the abortion debate is most inescapably about abortion. In that debate, the Supreme Court has again, as it did in Roe, gambled its authority, and with it our constitutional order, by coming down on one side. There are shadings of difference between Casey and Roe—e.g., “liberty” replaces “privacy” as the controlling concept—but the end result is the same.
The result is a clear declaration of belligerency on one side of the culture wars. The Court decision endorses the radically individualistic concept of the self-constituted self. It waxes metaphysical in its assertion that the abortion liberty is necessary in order “to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” (Such philosophical speculation, bear in mind, is by lawyers presumably interpreting the Constitution.) Not only does authentic personhood require freedom from the state, but also freedom from other potentially encumbering community. From spouses, for example. The Court strikes down the requirement that fathers be notified before mothers get an abortion. That, it is said, would be an “undue burden.”
Marriage, the Court declares, is only an “association” of individuals entered into for the fulfillment of personal needs. The notion of the unburdened, unencumbered, autonomous self drives the entirety of the Court's opinion. Casey continues and expands the philosophical presuppositions of some earlier decisions, as brilliantly described by Gerard V. Bradley in “The Constitution and the Erotic Self” (FT, October 1991). In Casey, liberty is not the “ordered liberty” of the Founders, nor is it liberty directed to the good and formed by communities of memory and obligation. According to the Court, liberty is, without remainder, the liberty of self-will, self-expression, and indeed self-constitution. For the Court, as for so many Americans, that radically reduced concept of liberty “trumps” every other consideration. Which is why, of course, the slogans of “choice” serve the pro-abortionists so well.
In the otherwise lamentable Lee v. Weisman decision handed down only a few days before Casey, the Court wisely cautions against the establishment of a state-sponsored “civic religion.” The same justices seem to be blithely unaware, however, that in Casey and other rulings they are in fact asserting and endorsing a philosophy of at least quasi-religious status. Addressing the “concept of existence, of meaning, of the universe, and of the mystery of human life” crosses into those “ultimate concerns” by which religion is ordinarily defined. Against alternative understandings of the self in relation to community, normative truth, and even revelation, the Court recognizes no other reality than the isolated individual defining his or her reality.
Thus does it reinforce the Hobbesian idea that we are a society of strangers, perhaps of enemies, and it is the chief business of the state to prevent others from interfering with or obliging the Sovereign Self. The result is the atomistic, and potentially totalitarian, doctrine that society is composed of only two actors, the state and the solitary individual. It is a “civic” religion in the sense of being sponsored by the state, but it is hardly civic in character and consequence. Rather, it is the undoing of the civitas, of the “civil society” of myriad persons, associations, and communities of moral tradition interacting within the bond of civility and mutual respect. The construal of the self, of community, and of ultimate meaning that is espoused by the Court is incompatible with Christian and Jewish teaching and, we expect, with the common experience of most Americans. It is, in effect although not in name, another religion.
In expounding the doctrine of the unencumbered self, the joint opinion of Justices Kennedy, O'Connor, and Souter employs conventional feminist rhetoric to argue that abortion on demand is necessary for women to “order their lives.” In that view, order presupposes autonomy and, above all, control. This religio-philosophical doctrine of the self and community is not new in the Court's jurisprudence. In the past, however, it has usually been sprinkled through dissenting opinions. What is new in Casey is that it is the central argument of a decision supported by a majority of justices. It is a doctrine that grossly insults the women beyond number who believe that their lives are rightly ordered in exercising the responsibilities of marriage and motherhood. The Court assumes that the abortion license has been a critical factor, if not the critical factor, in securing greater dignity for women. It does not even deign to notice the counterarguments: that Roe has increased the abuse of women by irresponsible and predatory men; that it has created a huge abortion industry, dominated by men, that exercises a minimum of care in extracting a maximum of profit from the suffering of women.
Protective abortion laws, on the other hand, encourage women to order their lives in ways more positive and secure. For example, during the more than four years that the Minnesota parental notice law was in effect, the teen pregnancy rate dropped by more than 20 percent. In Massachusetts, when a parental consent law was in effect, the teen pregnancy rate fell by 16 percent. That such protective law protects the woman as well as the child is not considered by the Court in its long and rambling disquisition on the need for abortion on demand if women are to “order their lives.”
Nor does the Court show any awareness of alternatives to pitting the interests of the woman against the interests of the child. In our society, there is no shortage of policy proposals aimed at providing maximum feasible protection for the unborn, and maximum feasible care and support for pregnant women, mothers, and children. The Court is appropriately concerned for women with crisis pregnancies, but it utterly ignores the possibilities of law and public policy that could help the woman by eliminating the crisis, not the pregnancy. If the Court is to put itself in the business of policy analysis and prescription—a business that is not its constitutional assignment—it might at least acquaint itself with policy alternatives. But it is understandable that such alternatives are not taken into account, for the very consideration of them raises challenges to the dogma of the autonomous and unencumbered self.
The most glaring omission in the Court's decision is the recognition of the other party involved in abortion. The Court recognizes the fetus as “potential human life” in which the state has a legitimate interest (but not a “compelling” interest that could challenge the unfettered right to abortion). Like the Roe decision that it affirms, Casey suggests that the Court cannot resolve the question of whether the fetus is a human life. It is not, however, a question to be resolved but a fact to be acknowledged. Even the otherwise persuasive dissents by Rehnquist and Scalia (both joined by Thomas and White) fail to get this right. Whether or not the fetus is “a human life,” Scalia writes, is a “value judgment” that the Court is not competent to make. Since the American people disagree on this question, he continues, the Constitution mandates that it be addressed through the political process in the several states.
Whether the fetus is a human life is not a value judgment but a biological and medical determination that is beyond dispute. That is to say, no reasonable person denies that it is life. Further, possessing as it does an utterly discrete genetic program, it is a life. Finally, there is no question that this life is human. It follows necessarily that the fetus is a human life. Allowed to develop, it is not going to turn out to be a goldfish. Barring natural disaster (as in a miscarriage) or lethal intervention (as in abortion), the fetus will become what every sane person in the world will recognize as a human baby. The fetus is a “potential” many things—a potential rock artist, a potential policeman, a potential criminal, a potential Supreme Court justice. But it is only those things potentially because it already is a human life.
The “value judgment” (the more accurate term is moral judgment) enters when we ask what we are going to do about this human life. What, if anything, is owed this human life? What rights, if any, are possessed by this human life? Scalia notes that, up until the peremptory abolition of abortion law by Roe, the settled practice of our society was to provide, with few exceptions, legal protection for the fetus. He writes that the text of the Constitution and an interpretation of it that respects its original understanding tell us nothing about what ought to be done with respect to abortion. Therefore, he concludes, in a representative democracy it is a question to be resolved by the people, as best as they are able.
We note as an aside that, if the constitutional tradition includes the Declaration of Independence (as Abraham Lincoln and many others have contended), the argument is significantly affected. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Since the Founders did not indicate at what point in life people are so endowed by their Creator, one may reasonably argue that they are so endowed at every point along the continuum of life. That having been said, however, the Rehnquist and Scalia dissents are undoubtedly right in saying that the Roe and Casey decisions take on a surreal quality when they pretend to have “resolved” the abortion dispute without ever having engaged the central question of the dispute.
Let us put it as clearly as possible. There would be no abortion debate, there would be no pro-life or pro-choice movement, were it not for the fact that there are two parties immediately and inescapably involved in the abortion decision, the mother and the child. In the decision to abort, the life of the one party may, in some rare instances, be at stake. The life of the other is always forfeited. Remove the question of the other life, and abortion is a relatively safe procedure for getting rid of an unwanted growth. The entire abortion controversy is occasioned by the perceived fact of the other life. The extraordinary thing about the Court's position is that it claims to settle the debate by eliminating the concern that occasions the debate.
The Court's assertions about the state's interest in “potential” human life are made nugatory by its dismissal of any claims for the legal protection of that life. Americans are painfully confused and divided over the moral status of the life in the womb. But, except for the most radical pro-abortionists, they know that it is not a moral nothing. They know it is a child, or at least a child in the process of becoming, and, although they are not agreed on how it should be done, the great majority believe that it should somehow be protected. They believe strongly that it is wrong that this life can be terminated at any time for any reason.
Media chatter notwithstanding, Casey is neither an accommodation of conflicting views in the abortion debate nor a movement of even one inch toward an accommodation. The Court majority is absolutely right when it says that it absolutely affirms “the essential holding of Roe v. Wade.“ O'Connor, Kennedy, and Souter are not the “moderates” finding a middle way between extremes. On the substantive question, their way is the way of Blackmun and Stevens. In an apocalyptic concurring opinion that depicts “two worlds” at war—the children of darkness vs. the children of light—Justice Blackmun, the author of Roe, celebrates Casey by declaring that once again “the flame has grown bright.”
The “essential holding” of Roe and of Casey is that a woman has an undeniable right to obtain an abortion at any time during the nine months of pregnancy. There may be regulation after the point of “viability,” but even then exceptions must be made for reasons of “health”—including psychological health, which can mean emotional distress at being denied an abortion. The pro-life argument is for the maximum possible legal protection of the unborn. And for the protection of women who are pressured into abortion by men—men for whom Roe makes it convenient to abdicate their responsibilities. Nobody should fudge the fact that after Casey, as before Casey, not one unborn child in America is legally protected from being killed by abortion. That is the brute fact that, as demonstrated by every study over the last twenty years, is unacceptable to the overwhelming majority of Americans, and more unacceptable to women than to men. That is the fact reinforced by the Court's “accommodation.” (See James Davison Hunter, “Abortion: What Americans Really Think About It,” FT, June/July.)
Particularly unacceptable to most Americans is the idea that abortion should be used simply as another means of contraception. Yet that is precisely the view that the five justices of the majority move toward endorsing. The joint opinion states that “in some critical respects the abortion decision is of the same character as the decision to use contraception.” The opinion invokes the doctrine of “reliance,” which means that so many people have come to rely on abortion as contraception that it would be excessively disruptive to allow protective laws at this point in our history.
The justices put it this way: “To eliminate the issue of reliance . . . would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” More than 40 percent of abortions performed are on women who have had one or more abortions before. The Court's logic is that 1.6 million abortions per year is the price that must be paid in order not to interfere with lifestyles that presuppose the availability of abortion on demand. That is the judgment imposed by judicial fiat on a society in which 75 percent of the people say that abortions should not be allowed for the reasons that 95 percent of abortions are in fact performed. Most in that majority believe that abortion should be available in circumstances of extreme necessity. Again, there is no agreement on what constitutes extreme necessity, but that majority is of one mind in believing that access to abortion should be limited.
It is not true that the Pennsylvania provisions upheld by the Court place some “restrictions” on abortion. They set out some procedures for obtaining abortions, including procedures for minors to obtain abortions without a parent's consent. The Court says that no “undue burden” can be placed on the right to abortion, and any burden that prevents a person from getting an abortion is by definition undue. In their dissents, both Rehnquist and Scalia underscore the double-talk of the decision. Both note that the Court allows restrictions, so long as they do not actually restrict anyone from ready access to abortion. Both observe that the “undue burden” rule will keep the Court in the abortion-deciding business for years to come as it is forced to micromanage every provision adopted by fifty state legislatures. With Thomas and White, they beg their colleagues to abandon the madness of turning the Court into the political cockpit for the endless battle over a great moral question that, according to the Constitution, is rightly to be decided by the people in the political arena.
In one of the most stunning passages of a stunning decision, an imperial Court suggests that, its having chosen sides in the culture wars, the American people are obliged to submit to its decision. “Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe . . . its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
Such judicial hubris clearly and rightly outrages Justice Scalia. The Court majority, he says, has concocted an “Orwellian” decision that rules out the possibility of political compromise on the most agitated question of the day, and then declares it the duty of the American people to accept its “resolution” of the question. The Court says that citizens will be “tested by following” its decision. Suddenly, it is not the Court but the American people who are on trial. Perhaps it is even contempt of court to hold this decision in the contempt that it invites. “It is instructive,” writes Scalia, “to compare this Nietzschean vision of us unelected, life-tenured judges—leading a Volk who will be ‘tested by following,' and whose very ‘belief in themselves' is mystically bound up in their ‘understanding' of a Court that ‘speak[s] before all others for their constitutional ideals'—with the somewhat more modest role envisioned for these lawyers by the Founders.”
Mary Ann Glendon of Harvard Law School is the authority on abortion law in the Western world. She notes that, of all democratic societies, the U.S. is far and away the most permissive on abortion. In the very week of the Casey decision, she observes, the now-united Germany adopted a new abortion law providing significant protections for the unborn. As is the case in every democracy except the U.S., the law was adopted through legislative politics. But the Supreme Court has in effect declared that the American people, once thought to be the teachers of the world in the ways of democracy, are peculiarly unfitted for self-governance.
We have no illusions about the infallibility of the democratic process. But, with the four justices of the minority, we believe it would be the better part of practical wisdom and constitutional order to let the states work through as best they can the impassioned confusions surrounding abortion law. As of this writing, there is a strong push to pass the Freedom of Choice Act (FOCA) in a Congress controlled by the Democratic Party. The proposed act would entrench abortion on demand in statutory law. If it passes, it will almost certainly be vetoed by President Bush, and there will not be enough votes to override the veto. The strategy of the pro-abortionists assumes that opposing FOCA will be an electoral liability for politicians. That may be a serious miscalculation. No more than 20 percent of the American people favor abortion on demand. The focus on FOCA would expose the truly radical position of the pro-abortionists, and greatly benefit those politicians who support a democratic resolution of conflicting views on abortion.
In American politics, the surer ground is usually the middle ground of perceived moderation. The two “extremes” are construed as those calling for abortion on demand and those calling for an absolute prohibition of abortion. In that context, the middle ground is support for the most protective abortion law that is politically and culturally sustainable. Political calculations aside, however, it is obvious that Roe and Casey have in no way “settled” or “resolved” the abortion conflict. The American people will not, and should not, accept the word of the current five-to-four majority as the definitive word. If President Bush has the chance to make it, the next nomination to the Court will provoke a battle that will turn “Borking” into a synonym for civility. But more important than the makeup of the Court, as Justice Scalia forcefully argues, is the right of the people to deliberate and decide what justice requires regarding “an issue involving life and death, freedom and subjugation.”
Abraham Lincoln had Dred Scott in mind when he asserted in his First Inaugural Address: “The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” As Lincoln would explain to the Stephen Douglases of today, Casey is not “the law of the land.” It is one wrong decision of the Court affirming an earlier wrong decision of the Court. So long as it stands, it must guide the decisions of other courts, and those in government office must be mindful of that. But the Constitution is the law of the land and, contrary to some judicial “realists,” the Constitution is not whatever the Supreme Court says it is. In this land, in this constitutional order, the people, through their representatives, make the laws.
Before and after he became President, Lincoln strove earnestly for the overturn of Dred Scott. He failed, and war came. It is almost impossible to imagine that there could be a civil war like the last one. But the destructive effects of anomie and anger are already evident as a result of law divorced from constitutional text, moral argument, and democratic process. The ever-fragile bonds of civility are unravelled as politics becomes, to paraphrase Clausewitz, war pursued by other means. Lawless law is an invitation to lawlessness. The four justices dissenting from Casey are not alarmists, but they are raising an alarm. Those who refuse to listen bear responsibility for the consequences. “Against the Court,” writes Scalia, “are the twin facts that the American people love democracy and the American people are not fools.” They will not forever, they will not for long, be denied democracy and treated like fools.
William Lloyd Garrison and his fellow abolitionists publicly burned the Constitution, believing it to be—as interpreted by the Court-“a covenant with death and an agreement with hell.” The Court minority worries about the angry disillusionment of millions of Americans who have been denied their right to make the case in the political arena for protective abortion law. But also the main opinion in Casey is filled with ominous worries about the moral legitimacy of the Court and the difficulty of maintaining the rule of law. Indeed, in affirming Roe, only two justices (Blackmun and Stevens) are prepared to argue that it was rightly decided law. Kennedy, O'Connor, and Souter say that, right or wrong, precedent must be upheld in order to sustain the perceived legitimacy of the Court. So that they will not appear to be “surrendering to political pressure,” they surrender to the political pressure in favor of Roe. They are right to be anxious about the moral delegitimation of the Court and the undermining of the rule of law. The course that they have chosen is the surest way to the end that they fear.