The Late Chief Justice William Rehnquist
National Right to Life
The U.S. Supreme Court’s Roe v. Wade decision made abortion legal nationwide in 1973. Fewer Americans know about the Court’s Planned Parenthood v. Casey ruling, which reaffirmed but also significantly altered the Roe decision. Last month marked its 25th anniversary.
Casey adopted an “undue burden” standard that, although nebulous, led it to uphold certain modest abortion limitations that the Court had previously, in the years following Roe, disallowed. Many abortion-reducing state laws have been enacted as a result.
Nevertheless, the Casey Court, by a 5-4 margin, upheld what it considered the “essential holding” of Roe. Abortion must be legal for any reason prior to fetal viability, the Court affirmed, and it must be legal for at least “health” reasons, broadly defined, even after viability.
Roe was widely criticized—both by scholars who support legalized abortion and by those who oppose it—as a constitutionally ridiculous ruling. Almost 20 years later, could Casey come up with some better reasons for holding that there is a right to abortion in the Constitution?
Casey offered two reasons. First, it claimed (as Roe also did) that the “liberty” protected by the Due Process Clause of the Fourteenth Amendment (“nor shall any state deprive any person of … liberty … without due process of law”) includes a right to abortion.
Why?
Well, that provision of the Constitution, the Court said, affords protection to “intimate and personal choices” such as the “decision whether to bear or beget a child.” Grant that that’s true. Why think there is a right to kill an already-existing human being by abortion? We are not, after all, talking about contraception or about sexual activity. We are not talking about the decision to procreate. We are talking about attacking and ending the life of another individual.
Casey adopted an “undue burden” standard that, although nebulous, led it to uphold certain modest abortion limitations that the Court had previously, in the years following Roe, disallowed. Many abortion-reducing state laws have been enacted as a result.
Nevertheless, the Casey Court, by a 5-4 margin, upheld what it considered the “essential holding” of Roe. Abortion must be legal for any reason prior to fetal viability, the Court affirmed, and it must be legal for at least “health” reasons, broadly defined, even after viability.
Roe was widely criticized—both by scholars who support legalized abortion and by those who oppose it—as a constitutionally ridiculous ruling. Almost 20 years later, could Casey come up with some better reasons for holding that there is a right to abortion in the Constitution?
Casey offered two reasons. First, it claimed (as Roe also did) that the “liberty” protected by the Due Process Clause of the Fourteenth Amendment (“nor shall any state deprive any person of … liberty … without due process of law”) includes a right to abortion.
Why?
Well, that provision of the Constitution, the Court said, affords protection to “intimate and personal choices” such as the “decision whether to bear or beget a child.” Grant that that’s true. Why think there is a right to kill an already-existing human being by abortion? We are not, after all, talking about contraception or about sexual activity. We are not talking about the decision to procreate. We are talking about attacking and ending the life of another individual.
“The abortion decision,” wrote Chief Justice William Rehnquist in dissent, “must therefore be recognized as … different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy.”
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