Important Passages from Casey

Here are some notable passages from the Casey "troika" opinion:

1. The "Mystery of Life" passage: "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. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." (p.637).

See also, id. (a few sentences below), in which the Court says that abortion is fraught with consequences, "depending upon one's belief, for the life or potential life that is aborted." The existence of human life in the womb, is not a question of scientific fact, but simply a matter of opinion or belief.

Justice Scalia's response to the "mystery of life" passage:
 
"I have never heard of a law that attempted to restrict one’s “right to define” certain concepts; and if the passage calls into question the government’s power to regulate actions based on one’s self-defined “concept of existence, etc.,” it is the passage that ate the rule of law." (From his dissent in Lawrence v. Texas)


If we take this language seriously, where would it lead us? Is the Court saying that "personhood" is subjective, and thus each "person" should be allowed to decide whether he is harming another "person?" May the law ever impose a definition of "personhood" on a "person" who wrongs another "person?" If so, when? Are all laws that restrict my "own concept...of meaning [and] of the universe" unconstitutional burdens on my "liberty?"

2. The "we rule, you shut up and obey" passage. This is the passage that has led some commentators to conclude that Roe is a super-precedent, one that may not be overruled: "Where the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." (partially at p, 638-639)

Has the Court ended the moral and political controversy over abortion? Did Dred Scott end the moral and political controversy over slavery? Should abolitionists have accepted the Court's "mandate" in Dred Scott and accepted slavery as a constitutionally protected property and liberty right of slave-owners? Is the abortion liberty "rooted in the Constitution?" Or is that exactly the point that makes the case so controversial?

3. And, perhaps most importantly, this passage that tells us exactly why abortion is a liberty has been read into the Constitution: "For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." (p. 638).

What is the Court saying here?

4. How about the logic of this passage (deleted from current edition of casebook): The Court is defending the logical soundness of Roe's recognition of a pregnant woman's SDP liberty to choose abortion--"The soundness of this prong of the Roe analysis is apparent from a consideration of the alternative. If indeed the woman's interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics...."

Hmmm. Let's think about this. If the Constitution doesn't protect a woman's right to choose to terminate the life of the unborn child she is carrying, then it follows that the state could compel her to have an abortion. Let's place that reasoning into another situation and see if it works. Suppose Grutz Junior murders his father, Grutz Senior. He argues that the Constitution must recognize his right to choose to murder his father, because if it doesn't that means that the state could compel children to murder their fathers. Good argument? Or is it risible?

What is the real protection against state laws compelling women to have abortions?

First, the right of democratic self-government. Do you know anyone who would vote for a candidate running for public office on a pledge to make abortion mandatory?

Notice also that a law compelling abortion might directly violate the explicit provision in the Due Process Clause which forbids the taking of life without Due Process. The Constitution may be silent about privacy, reproductive autonomy, and abortion, but it is not silent about life.