At the end of its 1992 term, the Supreme Court handed down its decision in Planned Parenthood of S.E. Pennsylvania v. Casey. And immediately it became clear that the implications of the decision reached far beyond the resolution of the case.
Despite twenty years of general success in electoral politics at the national level and twelve years of making judicial appointments—with five of nine Supreme Court justices having been named by Ronald Reagan and George Bush—and despite an open alliance with the pro-life movement, Republicans had failed to produce a Court willing to overturn Roe v. Wade. The three authors of the joint opinion in Casey—Justices Sandra Day O’Connor, David Souter, and Anthony Kennedy—relied on a substantive due process analysis as well as judicial consideration of social policy. In doing so, these Reagan-Bush appointees exercised the very kind of jurisprudence that had marked the most activist episodes of the Warren and Burger Courts. At least on matters of abortion, the judicial strategy that had brought together the economic and social-issues wings of the Republican party was sundered by Casey.
True, the Casey Court did leave a few crumbs of the abortion issue on the plates of state legislatures. But the alliance between the two wings of Reagan-era Republicans had never galvanized Republican politics on the state level. State legislatures tend to be dominated by Democrats, and at this level, especially in the South, Democrats have tended to be more pro-life than Republicans. After Bush’s defeat last November, some prominent Republicans, including both the outgoing and incoming Chairmen of the Republican National Committee, argued that the abortion issue is now settled as far as national politics is concerned, and the pro-life movement had better take its case to the culture. This was the mark of just how easily the party of judicial restraint and originalism had conceded the authority and political finality of the Court’s decision in Casey.
The pro-life constituency, made up in large part of Catholics and Evangelical Protestants, is less than one generation removed from the Democratic party. To invite this constituency to concern itself with grass-roots politics and cultural persuasion is, in effect, to issue it a ticket back into the Democratic party, if not into a third party of some sort yet to be seen. In any event, just as developments in Eastern Europe in 1989 clouded the meaning of being “conservative” in foreign policy, so the Casey decision has caused confusion and instability in the conservative alliance on domestic matters.
The implications of the Casey decision, however, reach beyond a possible realignment of conservatives in the area of electoral politics. In the aftermath of Roe v. Wade, it was possible to say that legal abortion was the result of an activist Court that took the already nebulous notion of privacy one step too far. Pro-life citizens, along with proponents of strict judicial discipline, refused to regard Roe as a permanent feature of our constitutional polity. For twenty years, there was reason to hope that judicial appointments would gradually produce a favorable chemistry and winning numbers on the Court. Indeed, the Court’s case law after Roe strongly indicated a gradual chipping away of the abortion right. Only those who indulged their darkest suspicions had reason to believe that Roe (in its entirety) would be maintained for long. On the eve of Casey, both sides were gearing up to battle the issue in the legislative arena.
The Casey Court, however, insisted that the right to procure an abortion is a fundamental right guaranteed by the Fourteenth Amendment. The authors of the joint opinion made it clear that the right is recognized on its own merit, and has nothing immediately to do with the nebulous area of marital privacy. Those areas of the judge-made abortion law that had provided occasion for chipping away at Roe—e.g., the scope of privacy, the trimester scheme, informed consent—were declared irrelevant to the “central holding” of Roe. If the rhetoric of the joint opinion is taken at face value, the abortion right cannot be denied without destroying the very fabric of the Constitution, the rule of law, and the legitimacy of the Court.
Therefore, the Casey decision forces us to ask unsettling questions. What does it mean for citizens to live in a polity in which the fundamental law of the Constitution requires them to cease and desist from conducting any serious business that touches upon the killing of the unborn? What does it mean for citizenship once the right to kill the unborn is equated with the franchise itself, and declared to be a more or less permanent feature of the law of the United States? What does it mean for a democratic republic if the people are declared legally incompetent to deal with an action that a large number of them regard as homicide?
The Casey decision has recklessly raised the political stakes on abortion. For the problem after Casey is not merely how to live in a culture that practices homicide as a form of birth control. Pro-life citizens were well aware that the culture had made this turn at least two decades ago. Moreover, the problem is not merely how to live in a political culture that would tolerate abortion. Most pro-life citizens understood that even if Roe were overturned, legislative abolition of all abortions was virtually impossible. The Casey decision recklessly raised the stakes by insisting that the abortion right is an unalterable feature of the fundamental law.
In order to judge whether or not these are merely idle, if not subversive, questions, let us revisit the decision.
The case concerned certain regulatory provisions of the Pennsylvania Abortion Control Act of 1982 (amended 1988 and 1989). The Act required, among other things, informed consent on the part of a woman seeking an abortion, informed consent of one parent in the case of a minor seeking an abortion, and notification of the spouse in the case of a married woman seeking an abortion.
The District and Circuit Courts reached different judgments about the constitutionality of these statutes. The United States, as it had done in five previous cases, asked the Court to overturn Roe v. Wade. At oral argument, the attorney for the abortion clinics contended that none of the statutes could be upheld without overruling Roe. To complicate matters still further, Chief Justice William Rehnquist—joined later by Justices Byron White, Antonin Scalia, and Clarence Thomas—asserted that the plurality decision of Webster v. Reproductive Health Services in 1989 had, in effect, already overturned Roe.
Thus, the authors of the joint opinion understood that this case required more than a mere fine-tuning of Roe v. Wade. Justices O’Connor, Souter, and Kennedy acknowledged “that our decisions after Roe cast doubt upon the meaning and reach of its holding.” Two decades after pronouncing that the Constitution protects a woman’s right to terminate her pregnancy, “that definition of liberty,” they conceded, “is still questioned.” Given this doubt, and the confusion besetting state and federal officials as to the constitutional standard governing the issue, the authors of the joint opinion set out “to review once more the principles that define the rights of the woman and the legitimate authority of the state respecting the termination of pregnancies by abortion procedures.”
It was incumbent upon them, therefore, not only to clarify their judicial handiwork, but also to justify the law. In short, this was not to be an ordinary case of judicial review, for what was at issue was not merely these Pennsylvania statutes (with the exception of the spousal notification, all were upheld by the joint opinion), but a mess of the Court’s own making.
In the order of clarification, the Court faced the daunting task of (1) clarifying the precise nature of the woman’s right, (2) mapping out where it intersects with the potential interests of spouses, fetuses, and the states, and (3) making sense of all this in the light of the patchwork of case law since Roe. In the order of justification, the justices faced the equally daunting task of (1) upholding Roe even while prescinding from the issue of whether it was correctly decided, (2) explaining their particular view of stare decisis in the matter, and (3) defending the jurisdictional, political, and even philosophical authority of the Court over the subject of abortion.
Whatever we might think of the final handiwork of the Casey Court, one has to be impressed by the complexity of the problems it tackled. There is no space here to treat all of the problems at their proper level of detail (they represent a virtual syllabus of the most disputed subjects in constitutional law). But for our purposes, there is one issue in particular that needs to be addressed: why does the Court uphold Roe v. Wade ? On what ground, and according to what principle, does it bind all of the legislatures of our polity to refrain from enacting laws that place an “undue burden” in the path of women seeking abortions?
The authors of the joint opinion aver that they uphold the “central holding” of Roe on two grounds. First, the right to procure an abortion is justified on the ground of its intrinsic merit. Second, the right is justified in terms of the reliance of the people, especially women, on legal abortion.
The first path of analysis seeks to identify a fundamental right that ought to be placed beyond the processes of ordinary politics. As Justice William Brennan once declared: “It is the very purpose of a Constitution—and particularly of the Bill of Rights—to declare certain values transcendent, beyond the reach of temporary political majorities.” So put, the substance of the abortion right represents a certain debitum—something owed in the order of justice to the woman.
The second path of analysis seeks to identify the contingent and evolving social and economic needs of citizens. Here, the right to an abortion is affirmed not because of its substantive merit in the moral order of things, nor because the Constitution mandates its protection, but rather because it is deemed to be in the interests of the common good. In effect, the Court ruled in Casey that, whether or not Roe was a mistaken application of constitutional law, the ruling has become woven into the fabric of the law—law, that is, insofar as it consists of customs, legal expectations, and that vast array of activities that rely upon settled rules.
These two paths of jurisprudence represent, as it were, the two lobes of the modern judicial brain. It is well known, of course, that they do not always communicate effectively, or even coherently, with one another. On the one hand, the Court wants to articulate and to defend certain individual rights against the pressure of political majorities; on the other hand, the Court wants to treat the right as something instrumentally necessary to social order. The former approach looks upon the right as something that transcends the political sphere, while the latter regards the right in the light of what would seem to be the very essence of the political: viz., in terms of policy issues related to the common good.
While the tension between these two paths of jurisprudence is interesting in its own right, the problem becomes especially acute when the subject of abortion is brought into the picture. We cannot forget that Roe turned what used to be homicide at criminal law into a fundamental right at constitutional law. Hence, when the Court issues a command to the various branches and departments of government to cease and desist from legislating restrictions on abortion, the Court forbids citizens from making and applying criminal laws. This represents the most draconian limitation upon the legislative competence of the citizens.
In the matter of abortion, who is bound? We are. “We,” that is, insofar as we are citizens who deliberate and act through democratic assemblies. The alleged right to abortion, therefore, renders the citizens themselves duty-bound to recognize the right of those who elect to kill the unborn. It is both false and useless to pretend that the moral issue is transacted in a merely private sphere, because the principle of the right binds all of the citizens as to what they may legitimately do qua citizens (that is, in making and enforcing laws, in formulating policies, and in conducting any public business that touches upon the alleged right). To use the language of Casey, citizens may not act through democratic assemblies to impose “undue burden(s)” upon the choice to have an abortion.
Given the two different paths of analysis, we can reasonably ask why we are duty-bound to obey this command of the Court. In terms of political morality, it makes a considerable difference which line of analysis generates the answer. On the first view, the limits upon our legislative and policy-making competencies are derived as implications of an inherent right of individuals to kill the unborn. On the second view, the limits are derived as implications of social needs. Here, we are duty-bound to operate according to the exigencies of the common good (as ascertained by the Court).
Even if the Court has no delegated authority to impose such a policy decision, it still makes a difference whether the rule is derived from the alleged merit of the right or from the purported needs of the common good. An inherently wicked rule can never be followed. At least for pro-life citizens, the notion that anyone has a fundamental right to kill the unborn is a rule that cannot be obeyed. In the moral order, no one can be obligated to respect that “right.” A rule imposed without proper authority, however, can be followed if one has reasons independent of the “authority” to conform one’s actions to the rule. So, for example, the Court might have no authority to command legislatures to tolerate prostitution. But we might have good reasons to conform our actions to this command. So, too, in the matter of abortion. Even if the Court has no legitimate power to command us to adhere to its abortion policy, we might have good reason to tolerate abortion for the sake of the common good. This difference is not a mere scholastic quibble.
Consider first the Court’s understanding of the abortion right. Here, the Court insists that the entire polity is duty-bound to respect the abortion right because the “right” is just. In reaffirming the “central holding” of Roe, the authors of the joint opinion remark that the right stands “at an intersection of two lines of decision,” each of which traces out a “general right.”
In the first place, there is the line of cases running from Griswold v. Connecticut (1965), through Eisenstadt v. Baird (1972), to Carey v. Population Services (1977). These cases protected citizens against state interference in decisions relating to whether sex should be procreative. Griswold limited the protection to married people. Eisenstadt extended the protection to unmarried people, and Carey extended the right of privacy in this matter to minors. Regarding this line of judge-made privacy law, the Casey Court states unequivocally: “We have no doubt as to the correctness of those decisions.”
In the second place, the Court calls attention to cases pertaining to a right of “physical autonomy,” especially in terms of limits on the power of government to mandate medical treatments. It cites the Cruzan (so-called “right to die”) case as an example of liberty related to medical treatments.
The joint opinion, however, asserts that, “in whichever doctrinal category one reads the case, the result for present purposes will be the same.” By either line of cases, the woman, the authors conclude, has a right “to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty.” “And it falls to us,” they add, “to give some real substance to the woman’s liberty to determine whether to carry her pregnancy to full term.”
These convergent lines of judge-made privacy law have been transformed into a single substantive due process right. In other words, in the twenty-five years since Griswold, the Court has moved from privacy as a marital right, to privacy as a right of adults in or out of marriage to control over the decision as to whether sex be procreative, to privacy as a right of teenagers, to privacy as a unilateral right to abort the unborn during the first two trimesters—and finally, in 1992, to the Casey Court’s conception of a general right of liberty.
With respect to the word “liberty” in the due process clause of the Fourteenth Amendment, the authors of the joint opinion explain that:
At the heart of liberty is the right 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.
Not only the authors of the joint opinion, but also Justices John Paul Stevens and Harry Blackmun, in concurring opinions, range far and wide in the Bill of Rights, trying to pinpoint the precise nature and scope of this prodigious right. The joint opinion, for example, refers variously to woman’s right of “autonomy” and “liberty” to make “intimate” decisions.
Justice Stevens found at least three distinct rights embraced by the liberty to abort fetuses: first, gender equality, as required by the Equal Protection clause; second, a general right of “conscience” to make “empowering decisions,” presumably found in the First Amendment; and third, the right of the citizen, as against government, in respect to an establishment of religion. Justice Blackmun likewise referred to the Equal Protection clause and to the Establishment clause as textual places from which to build an argument against governmental interference in the decision to procure an abortion. Blackmun, however, took the argument one step further, by suggesting that restrictive abortion laws violate the Thirteenth Amendment right against involuntary servitude: “By restricting the right to terminate pregnancies, the State conscripts women’s bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care.”
Whether the right is placed under the rubric of “decisional autonomy” or “liberty,” it is clear enough what the Casey Court wished to assert. The power of the state is limited in the area of abortion. The cause or principle of the limit is the individual’s inherent right of autonomy.
According to the joint opinion, this right is as profound as it is extensive. We are given to understand that governmental interference in the matter of abortion constitutes nothing less than personicide. When the state outlaws abortion, or places “undue burdens” in the path of a woman seeking one, the state deprives the woman of a crucial self-defining decision, and robs her of those attributes of selfhood constituted by free choice. We are not surprised, then, that the justices would conclude that the “legitimacy” of both the judiciary and the rule of law requires the recognition of this right.
The Court has imposed a right of liberty that, by logic of analogy, and by consistency of application, would guarantee that a government of positive laws is morally impossible. Such a comprehensive right as the one announced in Casey implies that ordered liberty effected by the “compulsion of the state” necessarily violates the most solemn natural right of citizens to maintain the integrity, if not the very existence, of their persons. Read literally, and applied consistently, this right would give citizens an immunity from virtually all positive laws.
Once again, the key question is the principle or the reason for the limit. Looking only at this part of the Casey decision, the answer is clear. The judicially imposed right is not a mere creature of positive law. It is not a legislative enactment tolerating abortion. Nor is it a declaration of a want of power on the part of legislatures. Rather, the limit is due to the woman, according to the order of justice as understood by the due process clause of the Fourteenth Amendment.
This is troubling news for those who believe that abortion is wrongful homicide. It makes Governor Mario Cuomo’s position, outlined at Notre Dame in 1984, that one is privately against abortion but bound in the public sphere to a different principle, completely irrelevant. Governor Cuomo has been mercilessly criticized for holding this view. But if the right were a legislative toleration for the sake of the common good, or if the right were a liberty exercised in the absence of a governmental power, his position would be plausible. One could maintain, along with Cuomo, that a superordinate principle in the public sphere either requires toleration or takes away authority to treat the matter, without supposing that one approves of the action protected by right, and without supposing that the right is inherent.
Take for example the act of treason. It could happen that due to modern informational technology, security over state secrets is so compromised that the national legislature removes legal liabilities attached to the act of disclosing state secrets. Or imagine, alternatively, that the Constitution neglected to delegate to any branch of the United States government power to prosecute its own officers for treason. In either scenario, the traitor can be said to have a right. But the reasons for the right are not grounded in the merit of the act, but rather in either a legislative toleration or a want of power on the part of authority constituted by the positive law. One could say, apropos of Cuomo’s position on abortion, that he is privately against treason, but bound in the public sphere to a superordinate principle.
This, however, is not the Court’s position. And it would be useless, not to say dishonest, to pretend it is. Again, looking only at the rights argument in Casey, the Court binds the citizens in a way that must inevitably create a terrible crisis of conscience. It is comparable to Lincoln’s charge in 1859 that the Court in Dred Scott did not content itself with arguments concerning a want of power in Congress, or with arguments tailored to support the political toleration of slavery, but rather took the next step of declaring the right of property in other men to be a fundamental right, unalterable by ordinary politics.
What does the logic of fundamental rights entail? If someone has a right, it means that others are duty-bound to do or not do something with respect to the claimant. It is important to understand that so long as we are not speaking in some loose or metaphorical sense about rights, a right does not bind its holder, but rather makes others duty-bound. For this reason, rights language can never be a merely private thing.
Moral conscience cannot be relieved by the legal fact that citizens also have a right not to kill their unborn children. Whether we elect to kill them or not, the principle stands undiminished and unqualified. For the law recognizes a civil right of individuals to commit wrongful acts of homicide, and prohibits the citizens, working through democratic assemblies, from proscribing such acts. Put bluntly, but accurately, those who choose not to kill their own children are exercising the very same right as those who deliberately kill them.
What any of us does in a merely private capacity is irrelevant to the issue at hand. Had Dred Scott been maintained, it would have been irrelevant to a Vermont farmer that he chose not to use slave labor, so long as the law required him to cease and desist from legislating or conducting any public business touching upon slavery.
Moreover, the abortion right seems to recognize a private franchise over matters of life and death. But such a power is exercised legitimately only in the light of a public end, and even then only according to public procedures and the most exacting standards of accountability. The power of lethal force does not belong to the individual citizen, except as it is recognized at common law in the case of self-defense. Neither the Roe nor Casey Courts made any pretense that this is what is at stake in the right to abortion. Rather, the woman is alleged to have a right to kill the unborn for private ends, without any public accountability or justification.
In fact, the abortion cases make it clear beyond any doubt that the reason and ground of the right consist in the woman’s estimation of her private good. Of course, the Court could have argued that the right consists in the woman’s liberty to effectuate some public good—such as population control. But, with respect to the abortion right, the “good” in question is essentially private. Indeed, the Court has repeatedly insisted not only that the right stands in sharp contrast to the public good represented by the pro-natalist policies of the state (and that, up to the point of viability, trumps the state’s interests), but also that the right is to be exercised even against the express desires of the marital spouse.
Thus, the abortion right is nothing less than a purported right of individual citizens to use lethal force without even the charade of being deputized to do so, and without any of the constraints that the government ordinarily imposes upon itself when it kills persons.
In sum, the first path of analysis in Casey reaches a clear conclusion, but at the price of creating a crisis of conscience on the part of citizens who believe that legal abortion is morally acceptable only as a kind of toleration for the sake of public peace. This is, of course, the position of many if not most citizens. But, as I said, the first path of analysis in Casey does not consult the attitudes, much less the will, of the majority. Rather, it is (to use Ronald Dworkin’s terms) “a matter of principle.”
Yet, if we follow the other path of analysis in Casey, a somewhat different picture emerges as to why we are bound to obey the Court’s command. The joint opinion contends: “[W]e are satisfied that the immediate question is not the soundness of Roe ‘s resolution of the issue, but the precedential force that must be accorded the holding.” Even assuming that Roe was incorrectly decided (an assumption that the authors of the joint opinion make no effort to dispel), the limits imposed upon the state by Roe now have a life of their own, and cannot be removed “without serious inequity to those who relied upon it.” Hence, the Court set out to “gauge the respective costs of reaffirming or overruling a prior case.”
In gauging the social costs, the Casey Court makes more than one argument in favor of letting the Roe decision stand. The centerpiece of its reasoning, however, is captured in the following passage:
Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control. . . . [F]or two decades of economic and social developments, people have organized their 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. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.
“An entire generation,” the justices conclude, “has come of age free to assume Roe ‘s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.”
From this point of view, the Court is not necessarily committed to recognizing a fundamental, substantive due process, right. Rather, it only needs to say that the judge-made law imposed by Roe, whether constitutionally correct or incorrect, has become an organic feature of the citizens’ legal expectations. The Court must act responsibly, and assess the likely damage not only to the citizens’ ordinary lives, but also to their respect for the rule of law. This, of course, is precisely the kind of consideration that a legislature would give to the matter. It is not difficult to imagine a legislature judging that it must tolerate certain actions—indeed, tolerate its own mistaken legislation with regard to these actions—on account of the common good.
Interestingly, the authors of the joint opinion compare the prospect of overruling Roe to their predecessors’ act of overruling Plessy v. Ferguson (1896) and Lochner v. New York (1905). The separate but equal doctrine upheld in Plessy and the substantive due process right to liberty of contract established in Lochner were legitimately overturned, they assert, because the social and economic facts had changed.
West Coast Hotel and Brown each rested on facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions. Each case was comprehensible as the Court’s response to facts that the country could understand. . . . As the decisions were thus comprehensible they were also defensible, not merely as the victories of one doctrinal school over another by dint of numbers . . . but as applications of constitutional principle to facts. . . . In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court’s constitutional duty.
What is this about “the thoughtful part of the nation”? “The Court’s power lies,” they continue, “in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.” In a similar vein, they assert, “Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.”
These remarks seem to suggest that Roe must stand, not because people perceive it as just, but because people (in any event, the “thoughtful” people) would regard overturning it as unjust.
We must ask what kind of justice or injustice is being considered. With regard to Plessy v. Ferguson, for instance, are the benefits and burdens of law to be distributed without respect to skin pigmentation, or does the Equal Protection clause only require the Court to adjust the law to the current perceptions of equality? Perhaps I have misread Plessy, but the majority seem to have ruled that racial segregation was permitted under the Equal Protection clause precisely because law must express rather than change (or direct) social perceptions of equality. True, the joint opinion in Casey pays lip service to the principled argument against Plessy, but does so in less than a complete sentence, hedged in the context of explaining why social facts authorize judicial decisions. (Interestingly, while some pro-choice lawyers anxiously noted that, according to this analysis, the abortion right would seem to dangle on the thread of the Court’s estimation of social facts, the African-American community mounted no objection to the notion that the doctrine of separate but equal was wrong only because of changing facts, or perceptions of facts.)
Once again, then, we return to the question of how and why we are bound to obey the Court’s command in Casey. As the authors of the joint opinion say: “Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification.” That is to say, were a legislature to make a determination in this area of abortion, all we need to know for purposes of law is that the legislature willed it. But the Court must give a constitutional justification. What is it?
The Court appears to be saying that we are bound because its ruling comports with the common good. Were the social facts to change—for instance, if most citizens no longer relied upon abortion as a method of contraception—then the holding could go the other way.
Therefore, despite all of the usual rhetoric about the Court defending rights against political majorities”such rhetoric being strewn throughout the joint opinion”the counter-majoritarian principle is reduced to the mere fact that a nonelected body imposed the rule in the light of what it deemed to be the perceptions of the “thoughtful part” of the nation. Moreover, despite all of the hand-wringing about the precedential force of judicial decisions, and about the importance of stare decisis, the joint opinion really has nothing immediately to do with the precedential standing of a body of legal opinion. After all, Casey explicitly overturns all of the previous case law regarding the trimester scheme, all of the previous case law regarding informed consent, all of common law regarding the interests and responsibilities of husbands. Chief Justice Rehnquist observed that “one might inquire how the joint opinion can view the ‘central holding’ of Roe as so deeply rooted in our constitutional culture, when it so casually uproots and disposes of that same decision’s trimester framework.”
No, this is not a decision that respects precedent. Rather, it is a decision that respects the cultural and economic force of women and the impact of the decision upon their lives. While it is always prudent to respect the power of women, this is not necessarily the same thing as respect for precedent. So put, this second path of analysis seems to hold not only civil rights, but the precedent of the Court’s own case law, hostage to what enlightened opinion regards as the common good, as defined by their social, economic, and lifestyle needs.
Liberty,” says the first sentence of the joint opinion, “finds no refuge in a jurisprudence of doubt.” To paraphrase Bentham, the Court set out in Casey to pluck the mask of mystery from the face of its abortion jurisprudence. But at the end of the day, the justices have created more doubt than existed under the regime of abortion imposed by Roe. On the one hand, they have made claims about the nature of the abortion right that go far beyond anything in Roe or in the post-Roe cases. Indeed, the right announced in Casey is more absolute and all-encompassing than any right heretofore recognized, even during the Court’s most activist episodes. On the other hand, the legitimacy of the Court’s command appears to depend neither upon the constitutional correctness of Roe nor upon the justices’ philosophical ruminations about the nature of liberty. Rather, it depends upon the estimation of the Court about the culture’s reliance on an ultimate method of contraception, and the justices’ hunch about how much the Court’s prestige would be diminished if it were to tell women that the Constitution provides no right to kill the unborn.
If the reason for obedience is the common good, rather than some intrinsic merit of the abortion right, then perhaps the crisis of conscience over the judge-made abortion law can be delayed. Even if the Court has acted ultra vires in issuing the command, the substance of the command could be reconciled with conscience. That is, we could say that the Court has moved itself ahead of the legislative curve, and has imposed a statute of the sort that we would have had to live with anyway. The important point is that we are not bound to obey a rule that asserts the rightfulness of abortion. Nor are we committed to the notion that the right of abortion is an unalterable feature of the fundamental law (though we are left in the lurch as to how it might be altered).
But the Court does not give us a clear or consistent answer to the question of why we are bound. Under the most benign scenario, citizens must adjust themselves to a rule issued without due authority. This is problem enough. Yet Americans have been living under a kind of judicial oligarchy for decades. Under the worst scenario, citizens are bound to recognize as a matter of fundamental law (not mere statute) a right to commit wrongful homicide. For millions of citizens, this is intolerable. Though the moral sensibility of the citizenry be debauched, it is not so depraved that such citizens will be able to live with this situation for long.
Russell Hittinger, a member of the Editorial Advisory Board of First Things, teaches in the School of Philosophy at the Catholic University of America.
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