Updated: Jul 18, 2022
Kathleen Wells - Circa 1992 the Supreme Court heard Planned Parenthood v. Casey. The reasoning Casey used set up the contours and parameters of the debate for the right to an abortion was around the concept of liberty. Casey involved a Pennsylvania law that required:
The abortion clinic must inform the woman about the nature of the procedure before the abortion can be performed;
The abortion could not be performed less than 48 hours after giving this in-kind information;
Minors must receive parental consent before obtaining an abortion;
Wives must inform husbands before going through the procedure.
In defending the law, Pennsylvania asked the Supreme Court to overturn Roe v. Wade. This would have been the 6th time in a decade since Roe was decided, that a state or federal government had asked for Roe to be overturned.
The Supreme Court in a narrow 5-4 decision, reaffirmed the right to an abortion in the Casey case. Casey got the same result as Roe, however, on different grounds. With Casey, the government, from beginning to end, had the right to protect the mother's health and in protecting unborn life. However, the majority only reaffirmed Roe’s central holding but not Roe in its entirety. That is to say that, women retain the right to an abortion and the government retained a limited power to regulate abortions, but only for the mother’s health and the life of the unborn.
Casey can be seen as a significant indictment of Roe because Casey scrapped much of the reasoning that Roe used to support its outcome. Casey scrapped Roe’s trimester framework and asserted that the government had an interest in the unborn at the moment of conception and that the state had an interest in protecting the mother’s health extending back to the beginning of pregnancy, not the 2nd trimester, as Roe declared.
The Casey court replaced the Roe trimester framework with a system surrounding fetal viability which is the point where a child, if delivered, could survive independently outside the mother’s womb.
Before fetal viability, the state could not impose an undue burden on the mother to keep her pregnancy. The state could use persuasion, at this point, but not ban a mother’s desire for an abortion. Persuasion could consist of things like informing the mother about the procedure or options other than abortion. Nonetheless, before viability, the mother’s rights always win.
After fetal viability, the state could ban abortion outright, as long as the mother’s health was not in jeopardy. Casey established the new standard for abortion that remains in effect today. After fetal viability, the standard for government regulation changed significantly.
The Casey court scrapped Roe’s grounding of the right to an abortion in the right to privacy. The Casey court did not speak to extra-textual rights to privacy as the basis for the right to an abortion, i.e., it didn’t speak to penumbras or emanations. The Casey court grounded the right to an abortion more directly in the Constitution's text. Therefore, a repudiation of Roe’s reasoning.
The Casey court attached the right to an abortion to the word: liberty. They focused the use of this word on the Due Process Clause of the 14th Amendment.
“No state shall…deprive any person of life, liberty or property, without due process of law.” U.S. Constitution, Amendment XIV The Court argued that the liberty expressed in the Clause includes the Right to an Abortion. The Court defined liberty in the following way:
“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 life.”
However, I wonder if this is the correct definition of liberty, bereft of any morality or human nature. The meaning of human life is not defined by the political majority, this is true. The might of numbers does not make right. We have rights, including liberty, that stand beyond the ability of others to control.
However, the Casey court rejected the idea of liberty as moral or as something antithetical to individual rights, as individual liberty was itself, the result of certain moral claims about inalienable rights and human nature and equality. The Casey court in defining liberty as they did is a failure to understand that the Founding Fathers did not divorce liberty apart from human nature including morality. Moral claims that create the space for liberty also defined what actions liberty allowed and prohibited.
The Casey court retained individual choice but removed the basis of nature and morality upon which the founding of liberty justified it. The choice becomes the starting point to define the good or virtue, to define our own meaning and existence. As opposed to choice being the result of our existence, of our meaning, and of the good.
The way the Casey court has defined liberty, bereft of morality and human nature has had a broad effect beyond abortion cases, e.g., same-sex marriage. Is this the real definition of liberty that our founding documents put forward?
19 million black babies have been aborted since Roe was decided. The idea that black preachers would remain silent about this fact is astounding. Is it a good choice or moral choice to decrease your race potential population by half?
Do citizens and women owe society the character of being moral so that society remains free, stable, and prosperous? The Founding Fathers spoke about the necessity for citizens with good character.