In 1988 and 1989 the Commonwealth of Pennsylvania, led by Governor Robert Casey, enacted new abortion statutes that required that a woman seeking an abortion give her informed consent, that a minor seeking an abortion obtain parental consent (the provision included a judicial waiver option), that a married woman notify her husband of her intended abortion, and, finally, that clinics provide certain information to a woman seeking an abortion and wait 24 hours before performing the abortion. Before any of these laws could take effect, Planned Parenthood of Southeastern Pennsylvania brought suit against the governor, protesting the constitutionality of the statutes.
As a devout Roman Catholic, Bob Casey (1932-2000) was one of the leading Democratic officeholders maintaining the pro-life position, becoming increasingly isolated as his party moved monolithically to embrace a pro-choice position. This paralleled the shift within the party from what I've labelled the equal-opportunity state to the choice-enhancement state, the latest stage in the centuries-long development of liberalism. (See chapter 2 of Political Visions and Illusions for a more in-depth treatment.) The divided Court's decision in that case reaffirmed Roe v Wade and its basis in the supposed privacy guarantee implied in the 14th Amendment, but it abandoned the trimester framework of Roe, asserting instead that the law must not place an undue burden on a woman seeking an abortion.
One of the more quoted passages from Justice Anthony Kennedy's plurality opinion contained this controversial understanding of liberty:
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.
This has sometimes been called the "sweet mystery of life" or "sweet mystery" passage, undoubtedly a tongue-in-cheek allusion to this old song from a 1910 operetta. Here is the larger context from which this passage is taken, with the citations removed:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education . . . . Our cases recognize "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." . . . Our precedents "have respected the private realm of family life which the state cannot enter." . . . 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.
Some observers have argued that Kennedy's definition of liberty introduces nothing new and simply affirms a hallowed legacy of liberty implicit (and explicit) in America's founding documents. The Declaration of Independence famously holds "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." By some accounts, Kennedy was simply reiterating an age-old American conviction rooted in the nation's history. From Puritans and Catholics fleeing a protestant king to Quakers and other nonconformists wishing to practise their respective faiths without undue interference, immigrants to these shores were seeking freedom from the perceived oppressive constraints imposed by their Old World rulers. Freedom of speech, of religion, of the press, of assembly—all are protected by the Constitution, especially in the first ten amendments known as the Bill of Rights. Nothing terribly innovative or controversial here.
Other observers were less sanguine about Kennedy's reasoning, arguing instead that his definition of liberty is rooted in an extreme individualism that isolates the person from his or her obligations to the larger community. To "define
one's own concept of existence, of meaning, of the universe, and of the
mystery of human life" seems to take us well beyond what an ordinary human being subject to the limits of the natural world and the standards of human societies can possibly claim to do. Kennedy's words appeared to make us gods with superhuman powers to create and even to impose meaning on the inert material of the cosmos. Taking them seriously would furthermore facilitate conflict as ostensibly autonomous individuals attempted simply to follow their own proclivities irrespective of those mores which, in some fashion, underpin every human community. Unleashing this expressive individualism, as Charles Taylor and others label it, would force the state apparatus to fill the vacuum created by the suppression of informal standards once regulating interpersonal and intercommunal relations. No court could possibly guarantee such liberty without causing serious harm to the nation.
Following the principle of stare decisis, Casey largely upheld Roe while further extending a woman's right to choose by liberating her from laws placing an undue burden on her decision to end her pregnancy. But because it offered no guidance on how to distinguish a due burden from an undue burden, it left considerable uncertainty in its wake, in addition to providing the pro-life cause with one more reason to try to change the composition of the Court. I will conclude with one final citation from the Casey ruling:
The Court's duty in the present case is clear. In 1973, it confronted the already-divisive issue of governmental power to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment. Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense. A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, and we do so today (91, emphasis mine).
That last-but-one sentence appears to constitute a remarkable admission that it is better to cling to an erroneous—and perhaps even unjust—ruling than to correct it and risk damaging the reputation of the Court. Nevertheless, the Court's expressed concern over its standing is a legitimate one to which I will return later.
Next: Reflections on Dobbs, part 4: the Court's reasoning
Previous: Reflections on Dobbs, part 1: creating and overturning precedents
Reflections on Dobbs, part 2: 'rights talk' and partisan polarization
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