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…
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