Abortion: Enough on Roe; Let’s Talk About Casey
October 7, 2008 | Permalink
A Google Blogs search (arbitrary, I know) turns up 62,919 results for Roe v. Wade. It turns up only 399 for Planned Parenthood v. Casey. That’s about 158 Roes for every Casey.
A regular Google search is similar. There are 2,570,000 results for Roe v. Wade. There are about 67,700 for Planned Parenthood v. Casey. That’s about 38 Roes for every Casey. Better, but still not good.
Why? For all the talk about about overturning Roe v. Wade, it’s not even good law anymore. It has some stare decisis value, but that’s about it. (Precedence, for you non-Latinites.) Planned Parenthood v. Casey is the law. It also has the advantage of being better written and better reasoned.
Casey isn’t referred to for a simple reason: It’s too moderate for both extremes.It’s a slightly complicated case, but here is a brief description:
[T]he Court (5-4) upheld a 24-hour waiting period, an informed consent requirement, a parental consent provision for minors and a recordkeeping requirement, while striking down the spousal notice requirement of a Pennsylvania statute. Invoking stare decisis, the political need for judicial credibility and a consistent Constitutional vision, the Court’s middle wing (O’Connor, Kennedy and Souter), while retaining the “central holding” of Roe v. Wade, overturned its trimester framework and its “strict scrutiny” standard of review, in favor of a new “undue burden” standard, proposed by Justice O’Connor, and a floating viability line where the state’s interest in fetal life becomes “compelling.” Blackmun and Stevens both dissented in part, favoring upholding more of Roe. Chief Justice Rehnquist, with Justices White, Scalia and Thomas, dissented, arguing that Roe had no Constitutional basis and ought to be overturned and that the “rational basis” standard should be applied to uphold the statute. The dissenter’s reasoned that if Roe was wrongly decided, there is no way to justify upholding it. Scalia also authored a dissenting opinion in which Rehnquist, White, and Thomas joined. Crucial to the survival of Roe in this case was O’Connor and Kennedy’s decision to retreat from their prior holdings that the state’s interest in protecting non-viable fetal life was “compelling.” O’Connor’s “undue burden” standard is a pragmatic compromise, allowing limited (and politically popular) state regulation of abortion, yet effectively preserving the general access to abortion that was the goal of Roe.
The Constitutional standard as interpreted right now, in short, looks at whether there is an undue burden imposed by a law, and looks at the viability of the fetus as a sign of a compelling state interest. The result of this, as stated, is a medium of regulated abortion, with reasonable restrictions available as is the case in most of Europe.
The opinion spends a lot of thought an energy on this topic and is worth reading if you care about this issue. As is the case with most O’Connor opinions, it is also very well written.
A law student commented on Casey:
The Court in the opinion delivered by O’Connor, while vehemently affirming Roe, upheld most of the statute. In my opinion it is an affirmation only in words. Justice O’Connor says the three essential parts of Roe are upheld: a right of a woman to choose an abortion before viability without undue interference by the State; a confirmation of the State’s power to restrict abortion after viability; and third recognition that the State has a legitimate interest in the health of the mother and the life of the fetus at the outset of the pregnancy.
This undercuts Roe. Here we get our first glimpse of undue interference or undue burden. Casey drops the standard of review from strict scrutiny to an undue burden test. In other words, if a requirement is too much of an obstacle to abortion then it is unconstitutional. The only provision considered an undue burden was the spousal consent requirement. Parental consent and the 24 hour waiting period were upheld along with the dissemination of information about other options.
Justice O’Connor affirmed the State’s power to restrict abortion after viability. Roe was very rigid in a trimester scheme with only a slight mention of viability. This scheme was rejected by the Court, but they did not define viability. Without guidance, the States are left to their own definition. Although anything less than twelve weeks might not hold up, the definition of viability could vary widely in each State.
The third essential part of Roe affirmed by the Casey Court, was not really a part of Roe at all. Roe rejected the State’s interest during the first trimester. In Roe, the mother’s interest in her liberty and choice outweighed any state interest in the life of the fetus. In Casey, the State’s regulatory power over abortions can begin at conception, and do not have to wait until the second trimester.
Casey, while affirming the tenets of Roe, actually weakened it. It now allows for more State regulation during the entire pregnancy and lowers the standard of review for other abortion statutes. The lower the standard the more deference is given to the legislature enacting the statute.
Now, to get to my last point: When you hear liberals defending Roe as the middle ground or conservatives looking at the poll numbers of support of Roe or especially when talking about how Roe is badly written or what not, realize that it’s not even the legal standard anymore. It’d be nice if some politicians realized that the great moderate standard of abortion law that the public has been clamoring for already exists.
And if you want fewer abortions? Change people’s minds. That will take care of the law in good time. If an overwhelming amount of people believe all abortion is murder, the law will change. The Supreme Court will not do the work for you.
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Are you suggesting that, under Casey, states have the right to legislate that abortion is illegal post-viability? That post-viability, states have a “compelling interest” in the life of the unborn, and therefore can mandate that the mother not abort the baby?
I don’t think that’s the case. But if it’s not, then I would say that, under Casey, “the mother’s interest in her liberty and choice” still outweighs “any state interest in the life of the fetus”. The weight of the balance on the state’s side was slightly increased under Casey, but the balance still swings HEAVILY toward the mother, not toward the state or the unborn child.
Casey is probably talked about so little because it really doesn’t result in many practical changes in the abortion landscape. It is not, as you called it, “the great moderate standard of abortion law” that everyone is clamoring for. It is a tweak, opening the door a small amount for minimal regulation of abortion.
Your last paragraph was most interesting. In one sense, I agree with you. Changing people’s minds on an issue is of paramount importance. At this point, however, no matter how many people’s minds are changed, the laws can’t change. The Supreme Court is not a court of public opinion. That’s the legislature. And this issue should be in the hands of the legislature, not in the hands of the Supreme Court. You seem to suggest that if public opinion changes, the Supreme Court will then follow suit. That’s a very scary view of the judicial process.
If, as you seem to suggest, the legality of abortion should be a result of majority opinion about abortion (since you said it “will take care of the law in good time”), then you should advocate its complete removal from the judicial branch, and its return to the legislative branch.
If, on the other hand, you’re just suggesting that changing people’s minds on the issue will result in fewer abortions, then of course you’re right. But “fewer abortions”, though a desirable step in itself, is not the ultimate goal of a great many of us who oppose abortion. If unborn children are humans, and therefore have basic human rights, then needless abortions are a travesty, no matter how “few” there may be.
Mark
What IS clear is that moderate regulations post-viability are allowed. Your race to scream about extreme examples is part of the problem, not part of the solution.
I tend to agree with your legal analysis (I was honestly more expecting attacks from the right, not the left).
I disagree with your social analysis though. When there is a sea change on an issue, the law will be changed; the reversal of Dred Scott signaled a real indication (not the culmination) of such a change.
Courts can only go so far against public opinion as they will have credibility. If the Court tomorrow ruled that self-aware computers had complete human rights, it wouldn’t be enforced for a second. There’s a similar, if unwritten, standard when reversing cases. Looking at the history of civil rights and womens jurisprudence shows that the Court is willing to be at the vanguard of a movement, but they’re very, very unlikely to put themselves out on a ledge.
If it was consensus public opinion that the rights of the mother would never outweigh the rights of the fetus so as to justify abortion, then the law would clearly be very different. That’s not the case.
At the same time, it seems unlikely that there can be no circumstances in which the state has a compelling interest in the life of the baby so as to not justify prevention of abortion.
To respond to some of your questions
If there was a restriction on abortion post-viability, the question for the court is not whether the state has a compelling interest (as you seem to suggest is up for debate). Whether or not the state has a compelling interest would not be an issue. The analysis would go as follows…
First, does this regulation deal with abortions pre-viability or post-viability? As noted, it is unclear how the court would handle the question of viability. But, assuming they determined that the regulation dealt with post-viability abortions, then…
Second, the question would be whether or not regulation imposed an undue burden on the woman. If an undue burden was found, then the Court would strike down the abortion restriction. If no undue burden was found, then the court would uphold the abortion restriction (see Gonzales v. Carhart for an example of this).
Also, I fcompletely reject your implicit suggestion that the Court ought be completely insulated from public opinion. At best, that’s not realistic.
John,
Thanks for your response.
Help me, though… where did I “race to scream about extreme examples”? Or was that referring to something other than my comment?
I agree with you that utter and complete disconnection of the courts from public opinion is impractical and probably not desirable. Courts are, even, indirectly “elected”, because they are appointed and confirmed by elected bodies. So, yes, public opinion has a say in the formation of court.
However, the judicial system is built so as to limit that influence. It takes a good deal of time for major changes to be implemented through the Courts, and even longer for major changes in public opinion to filter into the Courts through appointments. The Courts do not make an intentional effort to read the opinions of the populace and rule accordingly. Their clear given purpose is to uphold the law.
At many times over the last two decades, public opinion polls have shown that a majority of Americans are in favor of restricting abortions in ways that are currently not allowed under the law as interpreted by the Supreme Court. But the Court is not under any obligation to change the law based on these opinion polls… nor should it be. The Court’s job is to uphold the law, which in many cases means defending the rights of the minority against the selfish desires of the majority. The Court is not beholden to public opinion (of course granting that there is some practical impact of public opinion on the Courts).
Yes, if there was a massive change, and nearly everyone in the country agreed that abortions (or some abortions) should be restricted or legally prevented, and that change in opinion persisted for a decade or so, we would almost certainly see a significant change in Supreme Court law after that time.
However, change in public opinion generally happens gradually, and through legislative action rather than sweeping judicial mandate. For examples, see the current shift in public opinions about legally-recognized homosexual relationships. Not long ago they were viewed with great disfavor. A number of courts tried to impose those rules on various states, and in most cases states implemented Constitutional amendments or other legislative actions to override the rulings of the judiciary. But, at the same time, legislatures began implementing intermediary steps such as limited recognition of domestic partnerships, and eventually up to legally-recognized relationships that are hard to distinguish from actual marriages. I expect it won’t be long before a number of states begin legislating homosexual marriage. And the change happened, gradually, through the legislature. That’s how public opinion on an issue shifts.
In this case, the Supreme Court has removed the entire discussion from the realm of the legislature. Casey restored a minimal amount of discretion to limit access to abortions in very small ways, but not enough to allow any actual shift in public attitudes.
Your suggestion seems to be that opponents of abortion should shift public opinion completely and overwhelmingly to their side, and against the law, so that it stays that way for an extended period of time, and then the law will change. That’s not the way the system works, nor is it the way the system should work.
If “limiting abortion”, or even “preventing some abortions”, is a question that is open to public opinion (as opposed to an issue of human rights or Constitutional rights), then it should rightly be in the hands of the legislature, not the judiciary.
Mark
You call Casey a tweak, but completely overlook that the entire framework for weighing concerns regarding abortion has changed. The standards set for th under Roe are no longer good law. Roe is useful as a important signpost in jurisprudence history, but it did not tweak anything - O’Connor overhauled the standards.
Regarding my suggestion - I think you sort of characterize it in the worst way possible, but it’s a characterization I can live with. Women pushed for equal rights, that reached a tipping point and afterwards womens rights were recognized more by the Court. Soemthing similar happened with Brown v. Board.
Regarding Brown, the NAACP was extremely careful of the timing of cases they pressed during that period so as not to push for too much too soon. If the abortion movement had half the discretion and organization the NAACP under Marshall had, they’d have a fighting chance of getting what they want, but also only if it it’s part of a broader movement nationally.
I think you’re far, far, far too cavalier about the interaction between court rulings and social movements. Court history in enforcing personal rights (which is essentially what the pro-life crowd is looking for) is pretty clear on this matter.
On the other hand, I think the pro-choice people have effectively contextualized the debate into an extreme debate. It’s not totally honest, but the pro-life people are so busy screaming about how bad abortion is and how bad that it’s been that they havent taken the time to persuade anyone. The only organs doing that are Churches, which I think have had a declining effectiveness during the past 50 years.
John,
Thanks again for your response.
By “tweak”, I was referring not to the legal framework involved, but to the actual change in practice. I realize that the legal framework of abortion jurisprudence was changed. That framework change, however, did not result in much change in the practice of legislating regarding abortion. It did not open up much legislative room for limiting or restricting abortion. Therefore, from that perspective, I consider it a tweak.
Women fought for decades to win recognition under the law as equal citizens with full rights. A war was fought to end slavery, and the fight for equal treatment continue for many decades more.
But I still see a key difference, as it applies to the Supreme Court, between those struggles and the abortion situation. There was no Supreme Court ruling specifically stating “women must not be given the right to vote unless the state proves a compelling interest” (in fact, women in Wyoming were able to vote, even on federal elections, as early as 1870). There was no Supreme Court ruling that said “No undue burden must be put upon the right of slave owners to kill and mistreat their slaves”. Legislatures could make laws giving women equal status in society, and various races equal status in society, without those laws being presumptively invalid… because the laws did not go specifically against Supreme Court precedent.
For example, Brown overturned Plessy v Ferguson, which made clear that it was valid under the Constitution for states to have laws that separated races in a “separate but equal” way. But, Plessy v Ferguson did not REQUIRE states to have such laws, nor prohibit states from making more permissive laws.
So, if instead of our current Court precedent, we instead had a precedent that made it clear that it was Constitutional for any state to make a law allowing abortions, but not requiring states to have such laws… that would definitely open up the legislative forum. It would put is in the same situation, legally, that the country was in in the decades leading up to Brown.
It is also worth noting that in both the case of Brown, and the case of women’s suffrage, the Court was acting on the basis of Constitutional amendments specifically establishing rights in those areas. The specificly-directed Constitutional amendment preceded any Court action.
In this case, there was no Constitutional amendment, no legislative action of any kind, establishing a nationwide right to abortion on demand. Some states were making laws protecting abortion in some situations, other states retained laws restricting abortion. These laws had been in existence for many decades, many since before the 14th Amendment was enacted (as Justice Rehnquist pointed out in his dissent). There was no legislative action the precipitated any action from the Court. The Court acted on its own, on extemely tenuous legal reasoning, in deciding Roe v Wade. Subsequent decisions (such as Casey) have been built on or around Roe, not on any legislative action. The whole legislative process was circumvented by that initial decision, and has not been restored by any subsequent decision.
Even some staunch legal advocates of abortion rights have argued that Roe v Wade was badly decided, overstepping the bounds of judicial action and moving into the legislative realm. No less than Ruth Bader Ginsburg wrote in 1984 that “[t]he political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Yes, Roe v Wade was heavy-handed judicial intervention in the legislative process. Casey has not much lessened the heaviness of that hand, and the legislative process is still prevented from running its course.
Requiring those of us who oppose abortion to overwhelmingly win in the court of public opinion, while not giving us the legislative forums in which such changes have always been allowed to happen in the past, is an unfair burden. Dismissing our concerns about Roe/Casey/etc., and telling us to just “change public opinion”, is… well, somewhat irritating.
If the Court will open up the legislative arena for us to fully participate in the legislative process as these difficult questions are debated and tested, then the process of changing people’s minds on the issue can proceed.
Mark
I admit that some of the legal stuff just clear went over my head–I’m just a regularish reader. But I get the main point–and I appreciate it. It’s near impossible to find a balanced discussion of the topic; it’s become so politicized that I question whether people really know what they’re arguing over. I find it amazing how many people have a really strong opinion on the topic based on hearsay– whatever view their political party says is the correct one– and actually are hazy on the nitty-gritty of the issue. I can’t count how many intelligent pro-choice people I’ve talked with who admit not really knowing what a partial-birth abortion is (or being clear on all the procedures–or even the law itselff). I also can’t count how many pro-life people I’ve talked with who think the only way to progress is to overturn Roe v Wade. Thus, the gridlock.
For the record, I’m a pro-life Democrat, but I don’t think overturning the law is the answer; as you say, it’s education. If women in particular were required to make their choice only after mandatory education on all the procedures and the scientific facts about prenatal development, I think we would certainly see a dramatic drop in the abortion rates. I’ve seen the affect that generally neutral but detailed information (PP’s info is not very neutral or detailed) has on the perspectives of young women in particular–and how many say that they really didn’t know what an abortion procedure actually entailed and yet were thinking of getting one.
I sincerely wish that the more rabid sectors of the pro-life camp would be willing to drop the picket signs, the unwillingness to compromise (i.e. South Dakota), the linking of contraception with abortion, and the abusive language…and get to work supporting abortion education…and that billion-dollar corporations like PP would stop hiding behind the “We care solely about women” facade and actually prioritize helping women make a truly educated choice. (I know they say they do, but that’s not the experience many of my friends have had in getting abortions with them. I’ve also seen their )