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VOL. 10, NO. 4April 25, 2008
The Casey Curse and the 2008 Elections, II
By Virginia Armstrong, Ph.D., National Chairman

Exactly sixteen years ago, on April 22, 1992, the U. S. Supreme Court heard oral arguments in what has come to be one of the most culturally and constitutionally disastrous cases it has ever decided — Planned Parenthood of Southeastern Pennsylvania v. Casey. The impact of Casey on life, liberty, and law in America today has been incalculable. It is therefore especially appropriate for us to return on Casey's "birthday" to the analysis of Casey which we began in an earlier "Briefing/Commentary."

Because the Casey Court was so frenzied in its defense of Court power against criticisms by the "public" (i.e., all Americans except the Reconstructionist Justices and their elitist supporters), we note the comment made approximately a century ago by Supreme Court Justice David J. Brewer. Brewer invited us to a continuing scrutiny of the Court by declaring, "many criticisms [of the Court] may be, like their authors, devoid of good taste, but better all sorts of criticism than no criticism at all."

In what we trust is a "tasteful criticism" of the Court's Casey curse, we continue our "curb the courts" elections strategy with this analysis of the Casey attacks on LIFE.

Talking Points

  1. The Casey Court reaffirms Roe's denial of the full personhood of unborn children. In the plurality opinion, these denials are quietly, but forcefully, tucked away in various other points the plurality is attempting to make.

    • These quotes directly deny the personhood of the unborn child:

      • ". . .the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child (emphasis added)."

      • " . . . the State has legitimate interests in the health of the woman and in protecting the potential life within her (emphasis added)."

    • These quotes directly contradict each other. The first explicitly refers to the "life" of the unborn. The second refers to the "potential life" of the unborn. "Life" and "potential life" ARE NOT and CANNOT be the same thing — or even reconcilably different. Furthermore, the phrase "potential life" is ridiculous. Of course the being growing within the mother is "LIFE." The only question (and this is a question only to the pro-aborts) is whether the LIFE is "HUMAN." The Court not only "gets it wrong" in defining "life" and "personhood," but these eminent jurists apparently do not even understand what it is that they are attempting to define.

  2. The Court's professed concern for protecting "fetal life" (or whatever phrase the Justices feel like utilizing at the moment) is sophistry because the rest of their ruling offers no such protection. The Casey Court, as we noted in our earlier "Briefing/Commentary" rejects Roe's "trimester framework" for determining the validity of state abortion regulations. The Casey plurality substitutes "viability" as the marker of "the earliest point at which the State's interest in fetal life is constitutionally adequate to justify [abortion regulations]." The Court also acknowledges that the point of viability in pregnancy has been changing. Thus, the protection of an unborn child's life depends on the current medical determination of the point of viability, which can change often and drastically. Nonetheless, the Casey Court declares, "Whenever it occurs, the attainment of viability may continue to serve as the critical fact [in determining a law's validity], just as it has done since Roe was decided; . . . ." Where is there ANY "protection" for unborn life in such a vacillating standard?

  3. In its intransigent proposition that the "soundness," "error," or "wrongness" of a precedent is insufficient to justify over-ruling Roe, the Court contradicts itself again. The Court declares, "Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman's liberty." This is an oxymoron. The "strength of the state's interest in fetal protection" and the "woman's liberty interest" are symbiotically related. A change in one automatically generates a change in the other. If the Court expands the "woman's liberty interest," the Court inevitably reduces the "strength of the state interest in [and protective power over] fetal life." The reverse is also true.

Questions for Candidates

  • How do you define "human life"?

  • When do you believe that human life begins?

  • Can the unborn be a "life," but not a "person"?

  • Should constitutional protections for life and liberty ever be based on vacillating standards such as the "viability" standard? If so, under what circumstances?

The Casey Court has delivered to us an opinion reminiscent of the awful Dred Scott decision of 1857, when the Supremes declared that the Negro race was composed of "inferior and subordinate beings." Dissenting Justice Curtis described that constitutional calamity in terms all too similar to Casey. Curtis declared that when we interpret the Constitution in any way other than by fixed rules and a strict approach, ". . .we are under the government of individual men, who for the time being have power to declare what the Constitution [and 'life'] are, according to their own views of what it ought to mean." Is this the America we want? Or will we use the 2008 elections to move toward eliminating the curse of decisions such as Casey and creating an America where both life and law are more secure?

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