Tuesday, October 07, 2008

Roe, Meet Casey

Throughout this election season, I've been following a blog called 2008Central.net, which posts press releases from the candidates, important news items, poll results, and other information pertinent to the upcoming Presidential election. Occasionally, the blog's author will also post editorials or observations about various developments, and I've found him to be knowledgeable, even-handed, and enjoyable to read.

Earlier today, he posted one such editorial which branched off of the usual topics he covers. It's called "Enough on Roe; Let's Talk About Casey", and discusses how the Planned Parenthood v. Casey decision from 1992 overruled most of the framework built in Roe v. Wade, and substituted a legal framework that allowed somewhat more restriction of abortion than was previously allowed. The legal information and opinion about the decision was interesting, and helped me understand a bit better the state of abortion law.

He closed his editorial with this paragraph, directed at opponents of abortion rights:

"And if you want fewer abortions? Change people’s minds. That will take care of the law in good time. If an overwhelming amount of people believe all abortion is murder, the law will change. The Supreme Court will not do the work for you."
I responded to him, and was pleasantly surprised when he answered my reply in short order. We've gone back and forth a few times through the day, and he has pushed me to learn more about the history of abortion law, and helped me to clarify my opinions about the issue. I won't attempt to copy any of that discussion here, or even summarize it... but if you are interested in abortion law, I think it would be worth the read.

And, I'd love to hear what you think. Is Casey a significant change from Roe? Is it enough of a change? Is it, as John from 2008Central.net described it, "the great moderate standard of abortion law that the public has been clamoring for"?

And, getting deeper into the comments, do my comparisons and contrasts between the current abortion-law situation and previous situations with women's suffrage and civil rights make sense? Or am I way off base?



Kevin said...


Casey is legally significant for the reasons discussed but I think the practical significance of Casey would be measured by those laws which were unconstitutional pre-Casey but are now constitutional. The more of those laws there were, the more Casey is a departure rather than a refinement. Sadly, I'm not fluent enough to know what those laws were.

In other words, if the 24h wait and parental notification were clearly unconstitutional pre-Casey due to the "strict scrutiny" standard, then the change to "undue burden" which allows them is significant.

I have no statistics at hand regarding what "the public has been clamoring for", but permitting laws that require a 24h wait and parental notification does "seem" more moderate (centrist) to me. I'd be interested to learn what the public thinks of spousal notification.

However, I don't think Casey sufficiently addresses centrist post-viability concerns, namely the subjectively broad health exception that effectively nullifies the State's post-viability interests. If I'm correct that this is centrist then, in that sense, I would disagree with John's statement that Casey is "the great moderate standard".

I agree that the judiciary changing precedence or law in order to better reflect popular opinion is tenuous since the legislature seems designed to do precisely that while the judiciary is not. Ideally, the judiciary would just apply the law, but in practice, there are blanks and conflicts that must be reconciled in a timely manner, all of which blurs the line between creating and applying law.

I don't have a firm grasp on the history, but since both Plessy and Brown were after the 14th Amendment, wouldn't Brown be a case of judicial reinterpretation away from Plessy's "separate but equal" principle? Or were there federal laws that preceded and supported Brown?

Nevertheless, I think you do make a fair argument that Roe overstepped and entailed that "centrist" solutions can only be found through SCOTUS rather than merely through state or federal legislatures (excepting Constitutional amendment).

It's late here and I got a bit lost in the first part of your last comment and some of John's double negatives. I hope my response here is coherent and helpful! :)


MarkC said...


Thanks for your response!

I think the health "exception" that realistically nullifies any possibility for states to prohibit abortions at any time during pregnancy or in any type of situation is the sticking point for me. I think a more moderate situation (to borrow John's word) would give more balance to the state's interest in preserving the life of the child, and may even give some weight to the rights of the child at some point during the pregnancy.

You are certainly right that Brown was a reinterpretation of the 14th Amendment away from the previous Pressy interpretation. But that's my point... Brown went back to the 14th Amendment for its basis. And the 14th Amendment specifically addresses the issue of the rights accorded to people of various races.

There was never any specific federal law or Constitutional amendment addressing the issue of abortion, one way or the other. States had a variety of laws, and the federal government had stayed out of the way. Then the Supreme Court stepped in, and with no specific federal law at all, built a very specific system of rules regarding abortion.

As far as I can tell, nearly everyone agrees that Roe was built on very flimsy (at best) legal reasoning, even if they believe it was good policy. Because Roe is now the established "law of the land", subsequent rulings such as Casey have been built on or have modified Roe... but none that I know of have established any better-founded legal basis.

Kevin said...


Good point that while Casey supercedes Roe, it is still based upon Roe. And I see what you mean -- the 14th Amendment is a much more direct and firm basis for Brown's reinterpretation than the right to privacy used in Roe.