WHAT REALLY HAPPENED IN THE CASEY DECISION
-------------------------
ET TU, JUSTICE KENNEDY?
by Russell Hittinger
_Roe v. Wade_ looked doomed. Both pro-choice and pro-life activists were
convinced that the Supreme Court was on the verge of overturning the right to
abortion on demand, legalized nationwide in 1973 by the infamous _Roe_
decision. The perfect case for a re-examination of _Roe_ seemed to be _Planned
Parenthood v. Casey_, which hinged on a Pennsylvania law containing several
restrictions on the right to an abortion. Imagine the surprise on all sides,
then, when the Supreme Court, by the narrowest of margins, upheld most of the
Pennsylvania law but at the same time reaffirmed, with redoubled vigor, the
holding of _Roe v. Wade_.
The ruling seemed confused and inconsistent, and in some respects, both
philosophical and legal, it certainly was. More interesting, however, is the
path the court took to arrive at this strange and fateful decision, whose grave
implications reach far beyond the abortion issue.
Reaffirming Roe
The authors of the joint opinion in _Planned Parenthood v. Casey_ declared
that whether _Roe_ was rightly or wrongly decided is irrelevant. The
triumvirate of Justices Souter, Kennedy, and O'Connor argued that what is
relevant is the need to reaffirm the "central holding" of _Roe_. The
triumvirate gave two arguments. First, we are told that the meaning of
"liberty" in the Fourteenth Amendment covers a woman's decision to abort a
pre-viable fetus. Second, we are informed that overturning _Roe_ would pose a
grave threat to "social stability," to confidence in "the rule of law," and
ultimately to the "integrity" of the judicial office. Finally, we are notified
that the Court "calls the contending sides of a national controversy to end
their national division." Thus, first on the principle of liberty, and then in
the name of the common good, the Court asks for obedience, respect, and civil
amity.
If amity means less litigation of the issue, the decision is guaranteed to
fail. The triumvirate propose that although states may enact some regulations
concerning abortion, they may not place an "undue burden" in the path of women
seeking to abort a pre-viable fetus. Critics immediately saw that "undue
burden" is, to use Justice Scalia's words, "inherently standardless." The
standard is imprecise and porous. Rather than judging whether a state action
satisfies a determinate text or principle of the Constitution, the Court must
inevitably indulge itself the liberty of making, and indeed even changing, the
standard as it goes. Inevitably, the content will be filled in with every new
round of litigation. Since states could not hope to know precisely what "undue
burden" consists of, their law-making powers will be held hostage to a Court
that has virtually become an organ of administrative law.
As was plain to anyone who has a television, both sides in the abortion
controversy were dissatisfied with the undue burden test. Despite the fact
that the Court struck down the spousal notification requirement, some wings of
the pro-life movement claimed victory in that the Court upheld four out of five
regulatory provisions enacted by Pennsylvania in 1990. These include: (1)
informed consent; (2) with a 24-hour waiting period; (3) parental consent, in
the case of minors; and (4) requirements to report data. But there was bitter
disappointment that _Roe_ was not overturned, and especially that the majority
indicated that there can be no direct challenge to the "central holding" of
_Roe_.
The pro-abortion forces likewise counted on the Court either to overrule or
to further whittle away at _Roe_. In the initial round of media appearances,
the usual cast of spokesmen from Congress, NOW, and NRAL expressed shock that
the Court would substitute the standard of undue burden for the standard of
strict scrutiny. There was a great deal of disingenuous lamentation about the
erosion of the abortion right. The day after the decision was announced,
Planned Parenthood took out an advertisement in the _New York Times_ that
claimed the decision threatens to return woman to "back-alley horrors" of the
pre-_Roe_ days. But once the decision was carefully examined, more serious
proponents of abortion rights understood the nature and extent of their
victory.
As Harvard Law Professor Laurence Tribe wrote in the _New York Times_ (July
1, 1992), the joint opinion "puts the right to abortion on a firmer
jurisprudential foundation than ever before." Ronald Dworkin went even
further, saying in the New York Review of Books that the decision "may prove to
be one of the most important Court decisions of this generation... because it
reaffirmed and strengthened the reasoning behind the Court's 1973 decision."
A Coup for Laurence Tribe
Tribe and Dworkin are correct. What makes _Casey_ different from our
previous judge-made laws on abortion is the migration of the abortion right
from privacy to liberty. The Court's very broad understanding of Fourteenth
Amendment "liberty" makes the abortion right more absolute than ever.
Moreover, the "liberty" vindicated in _Casey_ provides grounds for protecting a
number of other alleged rights in sexual and lifestyle matters (gay rights,
gender rights, etc.) which the Court heretofore had kept at bay. It is not
surprising that Professor Tribe was the first to see the import of the
decision. For, as I shall explain later, the Court's joint opinion subscribed
to Tribe's own theory that abortion is not really a question of privacy, but
rather derives from "the Constitutional principle of 'individual autonomy.'"
------------------------------------------
As vindicated in the _Casey_ decision, the
Court's very broad understanding of
Fourteenth Amendment "liberty" provides
grounds for protecting a number of other
alleged rights in sexual and lifestyle
matters (gay rights, gender rights, etc.)
which the Court heretofore had kept at
bay.
------------------------------------------
Tribe's influence upon the joint opinion can also be gathered from the fact
that, this past term, one of Justice Souter's clerks was Peter Rubin, who by
Tribe's own admission virtually co-authored his book "Abortion: The Clash of
Absolutes" (1990). In the Preface, Tribe wrote: "This book could not have been
written without the tireless and meticulous collaboration and assistance of
Peter Rubin in every phase of the project, from the initial research to the
preparation of successive drafts." In this book, Tribe and Rubin argued that
the core of the abortion right is the "liberty not to be molded physically and
psychologically into a mother." Even if the state could extract the fetus,
without harm or inconvenience to the mother, the state would still violate the
woman's right, Tribe and Rubin explain, because: "The idea of having a child
alive somewhere in the world, a child to whom one is a stranger, is deeply
unsettling for many. Most of us may intuitively feel that the continued
survival of an unwanted fetus, its development into a child by governmental
command, is an invasion of the personality from which each of us has a right to
be protected."
Conservatives may understandably wonder how a supposedly "conservative"
appointee to the Court could take the counsel of a clerk with such radical,
published opinions. Indeed, this paper trail, albeit one book, is more radical
than that of any Supreme Court justice appointed since the Second World War.
Tribe's influence was not only felt in Justice Souter's chambers. Michael
Dorf, also a former student of Tribe, was a clerk in Justice Kennedy's chambers
this past term. Dorf did not just help but officially co-authored with Tribe
the book "On Reading the Constitution" (1991). There is no reason to believe
that Dorf's understanding of constitutional interpretation differs
significantly from either his mentor Professor Tribe, or from his colleague
Peter Rubin. And there seems every reason to think that Justice Kennedy has
adopted Professor Tribe's view of Fourteenth Amendment "liberty" in sexual
matters. This, from an appointee who was recommended, among other reasons,
because he did pro bono work for the Catholic bishops.
The Rise and Fall of Privacy
Defining the Fourteenth Amendment's right of liberty, the triumvirate in
_Casey_ explain that:
These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity
and autonomy, are central to the liberty protected by the Fourteenth
Amendment. 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.
They insist that this is not mere dictum, and therefore not binding on
future decisions, but rather an "explication" of what the Fourteenth Amendment
requires as a matter of principle. Indeed, they insist that - along with
considerations of the importance of precedent - this meaning of liberty enters
into the very reason of their decision.
In order to grasp the importance of this new conception of liberty, let us
recall how the alleged right to abortion originally surfaced under the rubric
of privacy. In _Griswold v. Connecticut_ (1965), the Court invalidated
Connecticut statutes which forbade the sale or use of contraceptives, even by
married people. As usual, the Warren Court's activist majority was more sure
of the result to be reached than the means thereunto. Chief Justice Warren
refused to consider another Fourteenth Amendment "due process" argument. The
Court had already taken too much water from that well.
Perhaps, some of the justices reasoned, there is a constitutional right
peculiarly related to marriage, one that would provide some grounds for
invalidating the anti-contraception laws. But, in conference, Justice Black
contended that states had constitutional warrant to "abolish marriage" if, for
some strange reason, they elected to do so. Justice Douglas then proposed to
find First Amendment grounds for striking down the Connecticut statutes. In the
first draft of the opinion, he wrote:
Marriage is the essence of one form of the expression of love,
admiration, and loyalty. To protect other forms of such expression
and not this, the central one, would seem to us to be a travesty. We
deal with a right of association older than the Bill of Rights....
Yet it flourishes on the interchange of ideas. It is the main font
of the population problem; and education of each spouse in the
ramification of that problem, the health of the wife, and the
well-being of the family, is central to family functioning. Those
objects are the end products of free expression and these Acts
intrude on them.
Upon reading this draft, Justice Brennan pointed out that the First
Amendment protects speech in the form of advocacy. By no stretch of the
imagination was political speech at issue in the case. Nor was it a case of
commercial speech on the part of manufacturers of contraceptives. For Brennan,
the question could not be the state's interception of ideas, but rather its
meddling with marital decisions. Thus, he recommended that Douglas rework the
opinion in the light of a right to privacy.
Now, consider the same paragraph in the final opinion of _Griswold_:
Would we allow the police to search the sacred precincts of marital
bedrooms for telltale signs of the use of contraceptives? The very
idea is repulsive to the notions of privacy surrounding the marriage
relationship. We deal with a right of privacy older than the [Bill
of Rights]. Marriage is a coming together for better or for worse,
hopefully enduring, and intimate to the degree of being sacred. The
association promotes a way of life, not causes; a harmony in living,
not political faiths; a bilateral loyalty, not commercial or social
projects. Yet it is a noble association for as noble a purpose as
any involved in our prior decisions.
Even on a very superficial reading, we can see that two important things
changed between the first draft and the final opinion. First, on the advice of
Justice Brennan and Chief Justice Warren, Douglas abandoned the First Amendment
approach, and crafted a privacy argument. Second, and most important for our
interests, Douglas abandoned the notion that marriage is one important instance
of free expression, and "font" of the population problem. Moreover, the remark
about the woman's health also was jettisoned. In their place Douglas argued to
a quite different effect that marriage is unique precisely because it is unlike
relationships formed by political or commercial interests.
Douglas argued that privacy is a "peripheral" right attached to a "specific
right." The specific right is the enjoyment of marriage on the terms that make
marriage what it is - namely, a spousal relationship between two people, marked
by a certain mutuality, or as Douglas put it, a "bilateral loyalty." It is due
to this value that the "zone of privacy" is justified. He cited the precedent
of _Meyer v. Nebraska_ (1923), in which Justice McReynolds contended that there
is a Fourteenth amendment due process right "to marry, establish a home and
bring up children." Douglas also cited his own opinion in _Skinner v.
Oklahoma_ (1942), where he said that: "Marriage and procreation are fundamental
to the very existence of the race." These cases are not the precedents one
would cite in defense of some all-purpose right to self-expression or
self-definition in sexual matters. Indeed, these cases give no immediate
reason for recognizing a right to contraceptives, nor to non-procreative sex,
whether heterosexual or homosexual. Rather, they traced out the grounds for a
certain autonomy on the part of the family.
A Right of Marriage?
Seven years later, in _Eisenstadt v. Baird_, the Court ruled it
unconstitutional for the Commonwealth of Massachusetts to prohibit the sale or
dispersal of any drug or instrument to be used for "the prevention of
conception or for causing unlawful abortion." The purpose of the statute had
been explained in 1917 by a Massachusetts court: its "plain purpose is to
protect purity, to preserve chastity, to encourage continence and
self-restraint, to defend the sanctity of the home, and thus to engender in the
State and nation a virile and virtuous race of men and women." Given the
precedent of _Griswold_, it is unclear why the Massachusetts statute should be
unconstitutional. The statute was not applied to the use of contraceptives by
married people. There was no issue here of the police invading the marital
bedroom. But Justice Brennan took the case to involve the right of privacy in
the light of the equal protection clause of the Fourteenth Amendment. Was it,
however, the same right of privacy vindicated in _Griswold_?
Brennan acknowledged this difficulty. Indeed, he understood that in
Eisenstadt the majority must not merely interpret the right of privacy
according to a different set of facts, but rather change the basis of the
substantive value that undergirds privacy. He wrote:
It is true that in _Griswold_ the right of privacy in question inhered
in the marital relationship. Yet the marital couple is not an
independent entity with a mind ant heart of its own, but an
association of two individuals each with a separate intellectual and
emotional makeup. If the right of privacy means anything, it is the
right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child.
Brennan re-defined the nature of marriage in a way that pulled the rug out
from under the rationale of _Griswold_. The right was now construed to be the
value of decision-making in matters related to consequences of copulation,
whether in or out of marriage.
THUS the table was set for _Roe v. Wade_. In _Roe_, what was originally
called a "peripheral right" of privacy now was construed to protect a wide
range of alleged values, from economic security to the alleviation of social
stigmas. Insofar as a married women was understood to have a right
unilaterally to procure an abortion, _Roe_ did not merely extend the right of
privacy, it directly subverted the central value emphasized by Justice Douglas
in _Griswold_: namely, the mutuality of the spousal relationship. Under _Roe_,
a woman could unilaterally procure an abortion for no other reason than her
estimation of whether the balance in her checkbook allowed the child to be
carried to term. Recall that Douglas argued that the marital relationship is
unlike relationships formed by political, ideological, or commercial interests.
Again, it was precisely because of this difference between the mutuality
characteristic of marriage and the interests characteristic of politics and
commerce that allowed the Court in _Griswold_ to make a clear case for privacy.
The right, as originally defined by Douglas gave us a fairly clear
understanding of the value that privacy is meant to protect, and where the
powers of government begin and end. True enough, _Griswold_ was an example of
judicial activism. Yet the result of the decision at least plausibly reflected
what Justice Goldberg called "the tradition and conscience of the people."
Prior to _Casey_, there were two minority positions on where abortion stood
under the right of privacy. Each of these factions on the Court aspired to
assemble a majority. Conservatives on the Court contended that the right of
privacy had been too broadly drawn. In _Bowers v. Hardwick_ (1986), for
example, the conservatives won such a majority when the Court refused to extend
the right of privacy to homosexual sodomy. Justice White instead appealed to
_Griswold_'s original notion of marital privacy and wrote that "No connection
between family, marriage, or procreation on the one hand and homosexual
activity on the other has been demonstrated." Perhaps this same reasoning
could be used to whittle away at _Roe_, if not to overturn it altogether.
On the other side, Justices Brennan and Blackmun began to suspect that the
right of privacy was a dead end. They itched to find some other formulation of
the right. Indeed, in his dissent filed in Bowers, Justice Blackmun contended
that the right is not merely privacy, but rather a broader right of
"self-definition." This was in fact suggested by Professor Laurence Tribe, who
was the counsel for the accused homosexuals in Bowers. Tribe contended that
the line of privacy cases could be eliminated "root and branch" unless the
Court found certain "unifying principles" allowing it to protect such seemingly
disparate values as marriage, family, homosexual sodomy, lifestyle choice, etc.
He proposed that the right is one of "autonomy," or the ability to lay claim to
one's own personality through free choice.
This need to reformulate the nature of the right was acknowledged by
virtually all thoughtful progressives. We should not be surprised, therefore,
that in his recent New York Review of Books essay, Ronald Dworkin should claim
that the main achievement of _Casey_ is that it added "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."
Prior to _Casey_, the rhetoric of "self-definition" was only to be found in
dissenting opinions: first, as we said, in Bowers; then in _Webster v.
Reproductive Health_ (1989) and _Michael H. v. Gerald D._ (1989). The
newfangled right of autonomy or self-definition was never used to settle a
case, and the right to an abortion remained, clearly though problematically,
within the right of privacy - along with the right to be married, to make
decisions about the size of one's family and the education of children. Thus
_Casey_ represents a stunning victory for the progressive wing of the Court,
who at last have managed to emancipate not only abortion, but sexual conduct in
general, from the jurisprudential corsets of marital privacy.
Unlike privacy in matters related to abortion, the explication of "liberty"
by the authors of the joint opinion is not merely an overly-broad construal of
a right. Rather, the very meaning of "liberty" in _Casey_ is wrong. The
problem is not that it is "sweeping," as some critics say; the problem is that
it is false to the core. As formulated, it can only subvert ordered liberty,
whether private or public. The triumvirate assert that were these various
areas of self-definition formed under compulsion of the state they would no
longer define selfhood. So put, virtually every state action would prove
violative of "liberty." In conducting its ordinary business, the state would
be guilty of personicide at every turn. Laurence Tribe, for example, has
mentioned that the state's authority over so-called controlled substances
represents "government invasion and usurpation of the choices that together
constitute an individual's psyche." No municipal government could conduct its
daily business in the light of "liberty" so considered.
In 1915, Oliver Wendell Holmes snidely wrote: "If the world were my dream,
I should be God in the only universe I know." But this is exactly what the
joint opinion means by "liberty." During his confirmation hearings, Justice
Souter was touted as a disciple of Holmes. He has apparently abandoned his
tutor, for the joint opinion's estimation of "liberty" evinces none of the
traditional Anglo-American caution about things metaphysical. Where does this
weird theology come from? Did Souter, as some dime-store Thoreau, concoct it
pondside in the woods of New Hampshire?
More likely, this prodigious right to autonomy was taken from Laurence
Tribe. As we pointed out, two of this best students were clerks in the
chambers of two of the three justices who wrote the joint opinion. Whatever
immediate role these clerks had in the final decision, it is clear that the
right to abortion has been filtered through the argument that Tribe and Justice
Blackmun originally made in support of a right to sodomy in _Bowers v.
Hardwick_. The importance of this conceptual shift cannot be overemphasized.
For rather than having abortion linked to a right of privacy protecting a
rather traditional area of marital and family values, we now have abortion
justified in the light of an argument geared to defend homosexual liberty.
Previously the pro-abortion side was in the awkward position of showing why the
unilateral right to abortion should be included among the rather traditional
values protected under privacy; now the defenders of traditional family values
must struggle to justify limiting this new understanding of liberty to
heterosexual women seeking an abortion.
A Firmer Foundation for Abortion
Critics of judge-made abortion law were initially relieved that the Court
in _Casey_ seemed to have degraded the status of the right to abortion. Some
said that the migration from privacy to liberty renders the alleged right of
abortion more amenable to state regulation. Privacy, they reasoned, was a
"fundamental right," and state actions which touched on it necessarily
triggered the strictest scrutiny on the part of the Court. Although it is true
that the triumvirate hold that not every state regulation of abortion - now
considered in the light of "liberty" - necessarily triggers "strict scrutiny,"
it does not appear that the new abortion right is less fundamental than its
precursor under privacy. In _Casey_ the triumvirate refer to the "fundamental
rights" comprised under the term "liberty" and to the "promise of the
Constitution that there is a realm of personal liberty which the government may
not enter." Indeed, every analogy the triumvirate use for the right to
abortion (including the franchise itself) is something that qualifies as a
fundamental right. In its migration from privacy to liberty, abortion gains a
firmer foothold in the judge-made law than it had before, for the right is now
unburdened by the contradictions of the "privacy" argument. It is unburdened
by the precedent of _Bowers v. Hardwick_. It is as freefloating as the Court
might wish to understand "liberty." And, in contrast to the right of privacy,
"liberty" is explicitly mentioned in the Constitution.
Many readers are perhaps unaware how deeply this grandiose estimation of a
right to "liberty" informs the _Casey_ holding. For the triumvirate's second
argument, aimed at the exigencies of the common good, also suggests that
autonomous liberty is crucial to the proper functioning of society. "The
destiny of the woman," they aver, "must be shaped to a large extent by her own
conception of her spiritual imperatives and her place in society." Thus,
whether _Roe_ was rightly or wrongly decided, its central holding must be
maintained because "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." An "entire generation," they continue, "assume _Roe_'s concept of
liberty in defining the capacity of women to act in society." Moreover, the
triumvirate declare that older convictions about the "basic nature of marriage"
are no longer deemed "consistent with our understanding of the family, the
individual, or the Constitution." All common law on the subject, and indeed
the Court's own understanding of marriage in _Griswold_, are regarded as
obsolete.
------------------------------------------
Harvard Law Professor Laurence Tribe,
for example, has maintained that the
state's authority over so-called controlled
substances represents "governmental
invasion and usurpation of the choices
that together constitute an individual's
psyche. "
------------------------------------------
IT IS SHOCKING that the Court would argue that the political, legal, and
economic equality of women depends upon abortion. This approach to the "needs"
of the people is no different than the policies of the former Soviet Union,
where women averaged six abortions without any discernible improvement in their
economic or physical well-being. In any case, the triumvirate implicitly
concede that women's alleged dependence upon abortion is due to their own
judge-made law in _Roe_. Hence, the Court's interest in managing the social
consequences of its own action takes priority over the considered judgments of
legislatures. The Court, in effect, declares that any diminution of abortion
rights would place an undue burden upon the culture at large. The notion that
legislatures have a "profound interest" in pre-natal human life, or in the
cultural practices which support this interest, is effectively rendered moot.
States are forbidden to take steps that actually reduce the number of
abortions, or that promote and secure the traditional mores of marriage and
family. _Roe_, by contrast, though certainly containing the ingredients of
this argument, did not explicitly depend upon a rejection of the traditional
understanding of marriage and family.
While the migration of the abortion right from privacy to liberty makes the
subject of abortion less amenable to constitutional argument, the sociological
argument fuses abortion to the progressive social agenda in the culture wars.
Prior to _Casey_, few Americans were confused about the fact that abortion,
feminism, and gay rights are interrelated. But they were interrelated quite
apart from the judge-made law of the Supreme Court. The joint opinion changes
that. To the extent that the sociological argument informs the position of the
majority of the Court, it is guaranteed that abortion cannot be an isolated
issue in the law. If _Casey_ is to be emended by arguments internal to itself,
it will require a systematic refutation of a myriad of cultural propositions
which are now regarded as normative by the Court, including the role of women
and their political and economical dependency on abortion.
Lawless Liberty
In the face of this self-definitive liberty and its social implications,
what interest can the state hope to assert? With respect to adult
self-constitutors, the state may, prior to fetal viability, inform the woman of
the momentous nature of her decision. The state may take steps to ensure that
the decision is "thoughtful and informed" by indicating that there are
"philosophic and social arguments of great weight" in favor of continuing the
pregnancy. Hence, the amateur philosophers on the Court allow the states to
conduct brief philosophical seminars on abortion prior to a woman's commission
of the deed. We can imagine the state showing videos of a Fred Friendly PBS
round table, or perhaps a Bill Moyers special report. The bottom line is that
the state may only suggest the spiritually momentous nature of the decision,
but not hinder it.
By any clear and honest reckoning, _Casey_ is a disaster. It sets back the
legal challenge to abortion by making the right less vulnerable to principled
argument. It represents the adoption by the "moderate" wing of the Court of
the most radical theory held in the law schools. It contains jurisprudential
time bombs, waiting to be triggered by litigation over the claims of
progressives on other lifestyle issues. In this regard, it gives precedent for
the feminist and homosexual agenda in the culture wars. Insofar as section
five of the Fourteenth Amendment gives Congress enforcement powers, the notion
of liberty in _Casey_ not only gives judicial sanction for congressional
codification of abortion rights, it even more ominously encourages Congress to
exercise its section-five powers to prohibit the states from enacting laws that
uphold traditional morals in any number of areas. Indeed, Laurence Tribe has
already urged that this is the way to use _Casey_. The right of privacy was
certainly nebulous, and of dubious origin in the Constitution. Yet, so long as
abortion rights remained under privacy, Congress could not claim special powers
to enforce it under section five of the Fourteenth Amendment.
------------------------------------------
The notion of liberty in _Casey_ not only
gives judicial sanction for congressional
codification of abortion rights, it even
more ominously encourages Congress to
exercise its Fourteenth Amendment
enforcement powers to prohibit the states
from enacting laws that uphold
traditional morality in any number of
areas.
------------------------------------------
Yet, the joint opinion in _Casey_ unintentionally gives us three glimmers
of hope. First, the opinion is so blatantly political, and hence contrary to
the powers invested in the Court by the Constitution, that the incremental
steps of judicial activism, from _Griswold_ to _Casey_, can be seen for what
they are: namely, a usurpation of the ordinary political process. Second, the
so-called "moderate" block on the Court seems so unprincipled in these matters
that perhaps they will not remain consistent with their holding in _Casey_.
They might permit undue burden to include more than what we are now led to
expect. There also is the chance that they will not permit their libertine
notion of liberty to be extended beyond the case at hand. At least we might
hope that their understanding of liberty was only jury-rigged for the single
case. Third, the Court's abandonment of the privacy argument removes any veil
of subtlety on this matter of abortion. What we have before us is a lawless
notion of liberty. Because it is inherently lawless, it takes the abortion
issue beyond the ordinary craftsmanship issues of law and legal interpretation.
No matter what one's theory of the Constitution and of its proper method of
interpretation; no matter what one's theory of how the Constitution allocates
powers between the branches of government; no matter what one's theory of
federalism; the notion of liberty in _Casey_ cannot comport with any serious
legal methodology. No court, whether composed of liberals or conservatives,
can adjudge what is or isn't a constitutionally protected matter of
self-definition, because every decision one makes or does not make defines the
self. Hence, one would seem to have a right to do or not do whatever one
pleases, and no known legal method is relevant to such autonomy (literally,
"self-law"). Still, since this notion of liberty is both symptom and cause of
the moral and social disorder of abortion, it is perhaps just as well that that
be clear, without the usual complications of arguments about legal
methodologies - not that such legal arguments are not important, but rather
that they are seemingly irrelevant to what the Court has done in _Casey_.
Unless the composition of the Court changes, there is little left to do except
to make philosophical and moral arguments against this vision of liberty.
Reprinted WITHOUT PERMISSION from CRISIS, SEPTEMBER 1992.
-- -- -- -- -- -- -- --
About the Author and the Magazine:
Russell Hittinger is an associate professor at the Catholic University School
of Philosophy and an adjunct fellow at the American Enterprise Institute.
Crisis is commentary on the moral crisis in our society from a traditional
Catholic perspective. Crisis is edited by Ralph McInerny, and has an
impressive list of editors/contributors,
Crisis Freq: 11/year
P.O. Box 1006 Cost/year: $25
Notre Dame, IN
USA 46556
Phone: (800) 852-9962
Provided courtesy of:
The Catholic Resource Network
Trinity Communications
PO Box 3610
Manassas, VA 22110
Voice: 703-791-2576
Fax: 703-791-4250
Data: 703-791-4336
The Catholic Resource Network is a Catholic online information and
service system. To browse CRNET or join, set your modem to 8 data
bits, 1 stop bit and no parity, and call 1-703-791-4336.
-------------------------------------------------------------------
