The future of an illusion: reconstituting Planned Parenthood v. Casey.

• Author: Strossen, Nadine
• Position: The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies

On Thursday, February 28, 1985, a 9 mm bullet pierced the window of Justice Harry Blackmun's high-rise apartment. Whether by chance or design, the bullet that missed a mark took on symbolic importance--Roe v. Wade(1) was still very much under attack. That attack continues to manifest itself in a variety of ways, from proposed constitutional amendments to clinic bombings to assassinations of doctors. Those, of course, are among the most extreme and blatant attacks by anti-Roe zealots.

Roe has also been besieged by other attacks, more subtle but nonetheless significant, which were facilitated by three Supreme Court Justices who proclaimed that they were defending it and, we assume, acted in good faith. We refer, of course, to the plurality opinion in Planned Parenthood v. Casey,(2) jointly authored by Justices O'Connor, Kennedy, and Souter.

What if Casey had been decided differently? What if Justice O'Connor and/or Justice Kennedy had joined Chief Justice Rehnquist and Justices Scalia, White, and Thomas to overrule Roe v. Wade outright,(3) as O'Connor and Kennedy had previously suggested they might be inclined to do?(4)

Rather than leaping headlong into the politics of 1992-1993 and the fate of the Freedom of Choice Act, then pending in Congress, we prefer to begin with some observations about Casey and how it has affected public perceptions of reproductive freedom in America.

"[T]he essential holding of Roe v. Wade should be retained and once again reaffirmed," declared the Casey plurality opinion.(5) That opinion reiterated the "unbroken commitment by this Court to the essential holding of Roe."(6) As if two such professions of constitutional fidelity were not enough, the joint opinion further proclaimed: "[O]ur ... analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding."(7) With Orwellian facility, Roe's essence had been redefined. Never mind that what was once a "fundamental right,"(8) triggering strict judicial scrutiny of any restrictions, was relegated to constitutional limbo as a "liberty claim [],"(9) warranting judicial review of any restrictions only under the deferential, malleable "undue burden" rubric.(10) Never mind, also, that government officials were licensed to circumscribe women's "liberty claims"(11) in controlling their own bodies, lives, and health through restrictions that, in practice, demonstrably preclude abortion as a feasible option for many women--in particular, those who are young, poor, or live far from an abortion provider.

Ironically, the illusory nature of Casey's so-called "reaffirmation" of Roe's "central holding" --which had already been devalued by pre-Casey rulings(12)--was immediately assailed not only by pro-choice advocates, but also by that staunch opponent of Roe, Chief Justice Rehnquist. While his opinion in Casey deplored the plurality's failure to overturn Roe explicitly and directly, it simultaneously derided the plurality's handiwork as having, in effect, achieved that result covertly and indirectly. While the plurality protested--perhaps, to quote the Bard, "too much"--that what it had preserved was the "essential" or "central" holding of Roe, the Chief Justice dismissed these remains as Roe's "outer shell."(13) In his mocking terms: "Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality."(14) In the same vein, he caustically commented: "Roe v. Wade stands as a sort of judicial Potemkin Village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent."(15)

The hopes of Chief Justice Rehnquist and the fears of pro-choice activists have indeed been substantially realized. The Casey plurality opinion facilitated various and...