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VOL. 8, NO. 8June 28, 2006
A Bad Birthday: Planned Parenthood v. Casey
By Virginia Armstrong, Ph.D., National Chairman

January 22, 1973 is the date best known by Americans as the "birthday" of a landmark court decision. The decision was Roe v. Wade, which virtually legalized abortion on demand. But another decision and another date are arguably as significant — perhaps more so — in the history of egregious decision-making by the U. S. Supreme Court. June 29, this Thursday, marks the fourteenth anniversary of the Court's ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). Casey deserves far more attention than it typically receives because of the nature and ferocity of its attack on our Constitution and our culture.

Law professor Michael Stokes Paulsen has labeled Casey "the worst constitutional decision of all time" and has written extensively on this subject. In Casey the Court, generating one of the most splintered decisions in its history, upheld five specific abortion regulations in Pennsylvania, and threw out a sixth. But the horrible heart of Casey lies in its upholding of Roe and in the opinions various Casey Justices wrote attempting to justify a thoroughly unjustifiable ruling. The case generated five opinions. Four were separate opinions in which each author (or set of authors) "concurred in part and dissented in part." There was no majority opinion because no more than three Justices could agree as to the justifications for upholding Roe. The fifth opinion is, therefore, a "plurality opinion" authored by Justices O'Connor, Kennedy and Souter. The pro-life Justices were Rehnquist, Scalia and White.

No Court decision in history more clearly illustrates the damage that five radical, Reconstructionist Justices can inflict on our Constitution and culture. Let's consider two fundamental reasons why this is true.

  1. Cultural Damage. The most basic value of any society — without which no other value has meaning — is the value of "life." Casey sounds a ringing affirmation of the dastardly determination by the Roe Court that "the word 'person,' as used in the Fourteenth Amendment does not include the unborn." And the Court acknowledges that "if this suggestion of personhood [of the unborn] is established, the appellant's case [the pro-abortion case], of course, collapses, for the fetus' right to life is then guaranteed specifically by the Amendment."

    In Casey, the pro-abortion Justices actually acknowledge that this central holding of Roe may be "in error"; but the Justices nevertheless refuse to review the possibility of error because of other factors they consider more weighty. Such radically irrational judicial intransigence is deadly to our culture.

  2. Constitutional Damage. One of the greatest ironies of these abortion cases is that the Casey Court justifies its dogmatic refusal to consider error in Roe on the grounds of the "rule of law." One problem with the Casey Court's handling of the "rule of law" is that the ruling and accompanying smorgasbord of conflicting opinions create law that is the precise opposite of that which the "rule of law requires." The latter requires that the law, especially the supreme law, be certain (objectively and clearly understood), consistent (a judicial decision should contain no internal inconsistencies, nor should decisions existing at a particular point in time be inconsistent with one another), and continuous (current and past decisions should be consistent with one another).

    Few, if any, court decisions in American history violate these three standards more flagrantly than does Casey. One obvious example is the anti-life Justices' reliance on the "undue burden" standard — i.e., abortion regulations are constitutional if they do not impose an "undue burden" on a woman's right to an abortion. It is hard for even the most passionate Reconstructionist to explain how the undue burden standard even comes close to being "clear, consistent, and continuous."

    Another problem with the Casey Court's handling of "the rule of law" is that the ultimate touchstone of certainty, consistency, and continuity in American law — the ultimate expression of the "rule of law" — is the U. S. Constitution. But the Casey Justices replace the rule of law with the rule of judges by making the "rule of law" require an implacable adherence to precedent (court decisions) — at least to Roe as precedent. The pro-abort Justices make the remarkable declaration that the American people's belief in the rule of law is not "readily separable from their understanding of the Court" as the supreme authority in constitutional cases, empowered to "speak before all others for their constitutional ideals." Maintaining popular belief in the Court's legitimacy is therefore essential to the rule of law. And the Court's changing its mind about Roe (over-turning Roe) would undermine the Court's legitimacy — undermine the country's "very ability to see itself through its constitutional ideals." Stare decisis, not the Constitution, becomes the supreme law of the land.

No American court decision illustrates more forcefully than does Casey the necessity of curbing the courts — in all areas where they have exceeded their constitutional limits. The disaster of Casey — and of Reconstructionist judging in general — is summarized by Justice Scalia in his dissenting opinion describing the pro-abort Justices' opinions in Casey: "The Imperial Judiciary lives." [The Casey Court gives us a] Nietzschean vision of us unelected, life-tenured judges — leading a Volk (us, the American people) who will be 'tested by following [the Court]' and whose very 'belief in [ourselves] is mystically bound up in [our] 'understanding of a Court that 'speak[s] before all others for [our] constitutional ideals. . . .'"

We Must Curb the Courts!!!

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