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The Center Holds!

1.

The Supreme Court’s ruling in Planned Parenthood of Southeastern Pennsylvania et al. v. Casey, the abortion decision handed down on June 29, was a great surprise, and astounded many observers. It may prove to be one of the most important Court decisions of this generation, not only because it reaffirmed and strengthened the reasoning behind the Court’s 1973 decision in Roe v. Wade that a woman has a constitutional right to an abortion until the fetus is viable, that is, can live outside the womb, but because three key justices also reaffirmed a more general view of the nature of the Constitution which they had been appointed to help destroy. Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter, all of whom were appointed by Ronald Reagan or George Bush, and two of whom had expressed substantial reservations about Roe v. Wade in the past, joined the two remaining liberal justices, Harry Blackmun and John Paul Stevens, in strongly reaffirming Roe. But the three Reagan-Bush nominees also voted to uphold certain regulations of abortion that pro-choice groups deplore, and that Blackmun and Stevens, in separate opinions, voted to strike down.

Though there are good reasons, which Blackmun and Stevens described, to disagree with parts of the decision of the three judges, it would be wrong to underestimate the importance for women of their clear endorsement of a basic right to free choice about abortion until viability.1

They set out their views in a joint opinion that drew partial dissents from the Chief Justice, William Rehnquist, and Justice Antonin Scalia. Each of these dissents was joined by Justices Byron White and Clarence Thomas.2 Scalia’s dissent, which was particularly bitter and heavy with sarcasm, emphasized what many observers have come to realize: that the three justices who signed the joint opinion, and who this term have rejected orthodox conservative positions not only about abortion but about freedom of religion and other issues as well,3 seem to have formed a surprising new force reasserting a traditional legal attitude toward constitutional interpretation, a force that has so far partially frustrated the right wing’s desire to make the Constitution less effective in protecting individual rights against majority will.

The Casey decision concerned the Abortion Control Act that Pennsylvania had adopted in 1982 to regulate abortion. Among other things, the act required doctors to give prescribed information to women contemplating abortion, forbade doctors from performing an abortion until at least twenty-four hours after the patient had received that information, required parental consent for a teenager’s abortion (though with a by-pass procedure allowing a judge to find a teen-ager mature enough to make her own decision), and required married women to inform their husbands before any abortion. Five abortion clinics and one doctor sued for a declaration that the statute was unconstitutional because it violated Roe v. Wade. The federal district court for the Eastern District of Philadelphia agreed that the statute was unconstitutional and struck down all the provisions of which the plaintiffs complained. But the Third Circuit Court of Appeals substantially reversed the district court: it agreed that the requirement to notify spouses was unconstitutional, but denied that any of the other provisions were unconstitutional, even on the assumption that Roe v. Wade remained good law. Both sides appealed to the Supreme Court, the clinics arguing once again that all the restrictions were unconstitutional, and Pennsylvania arguing that even the provision requiring that spouses be notified was not.

The Bush administration filed a separate brief urging the Court to take the opportunity to overrule Roe v. Wade outright, as the Reagan and Bush administrations had asked the Court to do in five previous cases. Many lawyers and commentators had expected the Court to overrule Roe soon, because they thought that at least two of four recent appointees—O’Connor, Kennedy, Souter, and Thomas—would join Rehnquist, White, and Scalia, all of whom had expressed opposition to the decision, to provide the five votes needed for overruling Roe. Most commentators, however, expected the Court not to take that step in Casey, which it could decide without reviewing Roe, and to wait until one of the statutes more directly challenging Roe came before it next year, after the election.4

O’Connor, Kennedy, and Souter confounded both these predictions. They sustained the Third Circuit’s decision upholding most of the Pennsylvania restrictions but striking down the requirement that married women inform their husbands.5 But they insisted both on reviewing Roe in the present case rather than waiting—they said that a “jurisprudence of doubt” is bad for liberty—and on reaffirming rather than condemning Roe‘s central holding.6 It may exaggerate the future coherence of these three justices to describe them, as commentators in the press have, as now forming a new, moderate center for the Court. I suspect that they will divide again, as they have in the past, over specific constitutional issues, and that one or another will make decisions, as each has in the past, that will strike liberals as conservative rather than as moderate.

But the three justices do indeed seem united, as their joint opinion makes plain, in a crucial and fundamental conviction that separates all of them from the four conservative justices who voted to overrule Roe: O’Connor, Kennedy, and Souter emphatically believe that the principal individual rights protected by the Constitution should be understood, not as a list of discrete and limited rules hammered out in past political compromises, with only the force that the politicians who created them expected them to have, but rather as defining an overall national commitment to liberty and justice.

They ended their joint opinion with a commanding restatement of that ideal. “Our Constitution is a covenant,” they said, “running from the first generation of Americans to us and then to future generations…. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all our precedents.” They said that the due process clause of the Fourteenth Amendment, which forbids states to curtail liberty except through due process of law, must therefore be understood as protecting all of the most fundamental personal liberties, whether or not these are specifically mentioned in some other clause of the Constitution.7 They conceded that applying that test requires judgment, and that reasonable judges could disagree about which liberties were among the most important. But it is a great merit of their joint opinion that they were able to considerably strengthen the case for Roe by adding a crucial argument on why freedom of choice about abortion is fundamental, an argument that Blackmun’s opinion in Roe had not emphasized, but which two decades of national reflection and debate about abortion have since brought to the foreground.

The three justices recognized that the fate of a fetus is rightly of very great personal concern to many Americans. But they said that decisions about abortion nevertheless deserved special constitutional protection because such decisions involve “the most intimate and personal choices a person may make in a lifetime.” “At the heart of liberty,” they said, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

The argument summarized in that language is complex.8 As Stevens made plain in his independent, supporting opinion, the argument presupposes that a fetus is not a person within the meaning of the Constitution, and also presupposes that states have no power to declare it a person within their territory so as to limit a woman’s rights under the national constitution. Obviously, if a state can designate a fetus as a person, and protect it the way it protects other people, then the fact that a woman’s decision about abortion draws on her metaphysical or religious views would provide no reason for denying a state power to stop her killing what it is entitled and obliged to protect.

But once we assume that a fetus is not a person from the perspective of the Constitution, and that states have no power to declare it one, then the fact that a decision about abortion implicates profound personal convictions does provide a strong reason why the state must leave that decision to individual conscience. Some people who are strongly pro-life do think that even an early fetus is already a person from the moral point of view. Other opponents of abortion, though they do not think that an early fetus is even morally a person, or that it has rights or interests of its own, nevertheless insist that it embodies important intrinsic value because it is already a form of human life, a stage in the development of a full person, and that abortion is therefore inconsistent with what the joint opinion called “reverence for the wonder of creation.”

People who take a different view of abortion, and believe that it is sometimes morally justified, do not necessarily deny that a fetus embodies an intrinsic value. They may rather think that on some occasions—the joint opinion mentions cases in which a child, if born, would lead a deprived life—the appropriate “reverence” for human creation argues for abortion rather than childbirth.

It would be wrong, the three justices declared, for a state to form official, collective convictions about essentially ethical and religious issues like these, and to impose those official convictions on individual women, forcing them to suffer great personal hardship for metaphysical beliefs, about the meaning or inherent value of life, that they do not share. Any decent society committed to liberty will leave such decisions, it said, to an individual woman’s “own conception of her spiritual imperatives.” “Beliefs about such matters,” it said, “could not define the attributes of personhood were they formed under the compulsion of the State.”

That argument is important not just because it provides an even more secure basis for Roe‘s judgment that women have a right, in principle, to freedom of choice about abortion, but because it also provides a natural basis for the joint opinion’s other main ambition: to redefine and assess a state’s interest in regulating a woman’s decisions about abortion. Justice Blackmun’s opinion in Roe had conceded the existence of such a state interest, but had not satisfactorily defined it, and though several justices in later decisions had also referred to a presumed state interest in regulating abortion, the content of that interest had remained mysterious.

It would not be consistent with recognizing a woman’s right to freedom of choice about abortion, after all, to recognize as well that the state had a legitimate interest in protecting a fetus’s right to live in the same way it protects the interests of ordinary persons. If a state were entitled to protect the life of a fetus in that way, then women would of course not have a right to freedom of choice about abortion at all. But it is certainly consistent with the joint opinion’s explanation of why women do have such a right—that a decision about abortion implicates a woman’s most profound convictions about human existence and the cosmic meaning of life—to insist that a state has a legitimate interest in attempting to persuade its citizens to take decisions about abortion seriously, to understand that such issues do involve fundamental moral issues. So long, that is, as the state stops short of dictating to its citizens which decision they must ultimately make.

  1. 1

    In an advertisement published in The New York Times the day after the decision was announced, Planned Parenthood Federation of America said that “the decision in [Casey] threatens to put every woman back where she was nineteen years ago before Roe v. Wade ended back-alley horrors.” The advertisement was intended to solicit support for the Freedom of Choice Act now before Congress, which remains urgent and important, particularly since the decision in Casey was only 5-4. But it is wrong to suggest that a twenty-four hour mandatory waiting period before an abortion is equivalent to forbidding abortion altogether.

  2. 2

    Linda Greenhouse of The New York Times pointed out that, though these four justices joined each of the two partially dissenting opinions, the opinions are actually, in important ways, inconsistent with one another. See The New York Times, June 30, 1992, pp. A1, A15.

  3. 3

    See “Center Right Coalition Asserts Itself,” The Washington Post, June 30, 1992. In his partial dissent, Scalia referred bitterly to Lee v. Weisman, a recent decision in which O’Connor, Kennedy, and Souter joined with Blackmun and Stevens to rule that prayers at school graduation ceremonies violate the First Amendment’s separation of church and state.

  4. 4

    Statutes plainly inconsistent with Roe (and with the majority’s decision in Casey) have been enacted by the legislatures of Louisiana, Utah, and Guam, and these statutes are now under review in lower federal courts.

  5. 5

    Since Rehnquist and Scalia also voted to uphold the sections of the Pennsylvania act that the three-justice group approved, the Court as a whole approved them, in spite of partial dissents by Blackmun and Stevens declaring some of them unconstitutional. Since Blackmun and Stevens also voted to strike down the spousal notification requirement, that was also the decision of the Court, in spite of the votes of Rehnquist and Scalia to uphold that requirement.

  6. 6

    They rejected, however, what they called the rigid trimester scheme that Blackmun had set out in Roe to enforce that central holding, and they also, in upholding most of the Pennsylvania restrictions, overruled certain Supreme Court decisions following Roe which struck down similar restrictions.

  7. 7

    The joint opinion quoted Justice John Harlan’s 1961 opinion in Poe v. Ullman, which the Court later adopted in Griswold when it declared prohibitions on contraception unconstitutional. Harlan insisted that “liberty” within the meaning of the due process clause is not a series of isolated, historically selected freedoms, but “a rational continuum which…recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” See 367 US 497, 543.

  8. 8

    For a further elaboration of the character and force of this argument, and of its bearing on the state’s interest in regulating abortion discussed in later paragraphs, see my article, “Unenumerated Rights: Whether and How Roe Should be Overruled,” University of Chicago Law Review, Vol. 59 (1992), p. 381. I develop the argument further in a forthcoming book on abortion and euthanasia, to be published in 1993 by Knopf.

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