Et Tu, Justice Kennedy? What Really Happened in the Casey Decision

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 lawmaking 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 NARAL 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.’ ”

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 moulded 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 and 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 redefined 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 new-fangled 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 his 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 free-floating 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.

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.

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.

By

Russell Hittinger is the William K. Warren Professor of Catholic Studies at the University of Tulsa.

Join the conversation in our Telegram Chat! You can also find us on Facebook, MeWe, Twitter, and Gab.

MENU