But, as my friend reminds me, it didn’t have to turn out that way.
After Roe was decided, many states sought ways to limit or eliminate abortion despite Roe, and passed various kinds of restrictions. Cases contesting those regulations made it all the way to the Supreme Court on more than one occasion. In particular, in 1989, Webster v. Reproductive Health Services produced, for the first time on the court, a 5-vote majority upholding state abortion regulations. Given that the votes in favor of Roe had been diminishing steadily from the high water mark of 7 (in Roe itself), the momentum seemed to be growing in the courts not only to uphold tighter restrictions but even to overturn Roe.
One of the states that had been encouraged to strengthen its abortion limits by the Webster decision was Pennsylvania. And it was Pennsylvania’s regulations that were the subject of the Casey decision.
Casey was the first decision allowing detailed informed-consent requirements. Casey upheld Pennsylvania’s parental involvement law and, expanding upon notions of informed consent, in the past decade, 21 states have enacted ultrasound requirements.
It is essential to note that these laws were not enacted to make peace with a landscape of pro-abortion conquest in the wake of Casey. Rather, these laws were enacted to hem in abortion, to show it for the evil it is, and to limit it as much as possible, as soon as possible.
But they aim for more. They aim to overturn the abortion-on-demand regime inaugurated by Roe and affirmed by Casey. They aim to do so by expanding the few openings left by Casey. They aim to identify within Casey the seeds of its own destruction. And they aim to bring that seed to fruition through a decision of the same body that inaugurated the abortion regime, the Supreme Court.
There is no reason to believe that Roe can’t be overturned. Roe and Casey are incoherent as matters of constitutional interpretation. The implied-privacy-right basis of Roe is not taken seriously anywhere, even within the pro-abortion legal academy. The “individual liberty” basis of Casey, where it states “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,” is similarly ridiculed. At some point, a majority of the court will admit that there is no right to abortion under the Constitution and return the matter to the state legislatures.
My friend Bill Saunders is right. Ordinary Americans do not respect the Supreme Court merely because it speaks. Rather, they respect it because they believe it speaks truth – it elucidates what the Constitution actually means.
The lesson of Casey is that the nomination and confirmation of judges with a sound judicial philosophy is an essential foundation stone of a culture of life. The people we select for high judicial office must understand this and their judicial philosophy must reflect it. We forget this lesson from Casey not only at our peril, but at the peril of millions of unborn children and their mothers.
For Sutherland Institute, I’m Paul Mero. Thanks for listening.
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