Looking back on Planned Parenthood v. Casey.

• Author: Whitman, Chris

Scholarship that tells us what is really at stake in the lives of people affected makes the law honest and responsive. Whether or not it directly shapes doctrine, this type of scholarship can capture imagination and influence judgment. The Michigan Law Review has published some of the best of this work: Yale Kamisar's articles on coerced confessions, (1) Terry Sandalow's essay on affirmative action, (2) Joe Sax and Phillip Hiestand's description of the emotional impact of living in a slum, (3) Martha Chamallas and Linda Kerber's demonstration of how injuries that uniquely befall women have been dismissed as merely emotional wrongs, (4) and, most relevant to my project, Don Regan's article on abortion (5) and Martha Mahoney's on separation assault. (6)

Civil rights doctrine is thin and vulnerable when it develops without any genuine effort to understand and articulate the significance of the right claimed to the protected class. The Supreme Court's abortion law is an important example of this phenomenon. A woman's right to choose to have an abortion free from state coercion was defined, developed, and constricted without any sustained effort on the part of the Court to articulate why such a right actually is important to women. The right has survived almost three decades but is now barely alive, apparently settled into a minimal existence, protected only against the most overwhelming of state incursions.

In this Essay, I explore the implications of this failure. Part I discusses the compromise reached by the Supreme Court a decade ago in its last major abortion case, Planned Parenthood v. Casey. (7) Part II argues that the undue burden test adopted in Casey protects women only against total prohibitions on their right to choose to have a safe abortion. Like traditional rules regarding rape, it requires women to resist to the utmost in order to preserve their liberty. Less serious burdens are classified as mere inconveniences. Part III points to two fine articles published in the Michigan Law Review as examples of scholarship informed by attention to women's lives that should have expanded the Court's perspective. Part IV contends that the choice to have an abortion is, for some women, both an unavoidable and an ethical decision. It argues that more attention to what abortion means to women ought to lead all the Justices to see the question as a true moral conflict, rather than a choice between morality on one side and convenience or amorality on the other.

1. THE CASEY COMPROMISE

   Overall, the Court's record in understanding and articulating the perspective of women has been mixed. It has been quick to perceive how traditional stereotypes can harm untraditional women, as when it saw that Virginia's all-woman alternative to its state-run military institute for men would be inadequate for a woman seeking "adversative" training, (8) or when it found sex discrimination in the negative evaluations of a female candidate for partnership at Price Waterhouse. (9) But when it comes to protecting women in more traditional roles relating to sex and motherhood, the Court has been astonishingly obtuse. It failed to see gender discrimination in practices that burden pregnancy, (10) and accepted the gender norm of male promiscuity as a justification for upholding citizenship regulations that distinguish between children born overseas to alien men and American women and those born overseas to alien women and American men. (11)

   Abortion may be uniquely difficult because it implicates both sexuality and the meaning of motherhood. The Court came the closest to articulating why abortion rights are important to many women as part of its constitutional analysis in Casey. Casey involved a challenge to a Pennsylvania statute that imposed a variety of constraints on women who seek abortions, and on the doctors and clinics that provide them. Immediate reaction to the opinion varied dramatically. Most moderate observers of the Court were surprised, and many were pleased, by the Court's careful reaffirmation of Roe v. Wade, for the Court had seemed poised to reverse that decision. Those who had hoped for a reversal of Roe were dismayed, but so were abortion-rights advocates, many of whom regarded the opinion as a disaster. The opinion seemed to be written by several different authors who refused to listen to each other. It reaffirmed Roe in language sensitive to Roe's importance to women generally and, simultaneously, limited constitutional protections severely, with an almost callous disregard for the women most in need of protection.

   Since Casey, the Court has not returned to the broad question of whether the right to seek an abortion exists. Its subsequent abortion cases, Mazurek v. Armstrong (12) and Stenberg v. Carhart, (13) were treated as applications of Casey to new questions. In Mazurek, the Court, by a vote of six to three, held that laws specifically designed to discourage abortions would be constitutional, so long as they had little actual effect. In Stenberg, the Court, bitterly divided, struck down a state law that prohibited "partial-birth" abortions even when the mother's life or health was at risk.

   Neither majority opinion questioned Casey's formulation of the constitutional test. Casey appears to have defined a consensus that has reduced the pressure on the Court to reassess basic principles and that has endured for almost a decade. It is not unfair to see Casey as a vindication of the right articulated in Roe after two decades of political and academic challenge. The political challenge accomplished a great deal in limiting the breadth of the right to choose abortion, but it was not as successful as its organizers had hoped. When Casey was decided, the Court, for the first time, had a clear majority of Justices who had either written an opinion challenging Roe or had been appointed by a President committed to reversing the decision. Just three years earlier, in Webster v. Reproductive Health Services, (14) there appeared to be four votes for abandoning any serious review of state restrictions on abortion, and many Court-watchers were confident that one of the newly appointed Justices--either Souter or Thomas--would provide a fifth vote for reversal.

   The fifth vote never materialized. Justice Souter joined Justice O'Connor, who had been considered a possible vote against Roe, and Justice Kennedy, who had been part of the hostile four in Webster. Together they wrote an opinion describing itself as affirming "the essential holding of Roe." (15) Justices Stevens and Blackmun were willing to go further in striking down the Pennsylvania restrictions under attack in Casey. They joined the others to form a five-Justice majority for its result. The other four Justices would have upheld the Pennsylvania statute in its entirety. Thus, Justices O'Connor, Kennedy and Souter formed the decisive bloc of the Court.

   Those who had been dreading the reversal of Roe were exhilarated by the tone of the majority opinion. The Court reaffirmed Roe in ringing language rarely heard from the late twentieth-century Supreme Court. The opinion begins: "Liberty finds no refuge in a jurisprudence of doubt" (16) and ends with a reference to "the freedom guaranteed by the Constitution's own promise, the promise of liberty. (17) It includes an extended, careful, and even deeply-felt discussion of the Court's obligation to adhere to precedent. Justices O'Connor, Kennedy and Souter--all three appointed by Republican presidents who were looking for jurists who would be skeptical of the sort of judicial activism exemplified by Roe--appear, ironically, to have found in Casey an opportunity to demonstrate their commitment to the stability of law by reaffirming Roe.

   The Supreme Court's majority opinion in Casey is rare, even unique, among the Court's abortion cases in that it contains more than a cursory discussion of what reproductive rights have meant for women, of what might be risked if these rights are not retained. Roe itself famously cast the right to choose an abortion as a medical decision, in which the woman's interests are subordinate to her doctor's professional commitment to provide appropriate care. In elucidating the "right of privacy" in Roe, Justice Blackmun did briefly describe the harms that might befall a woman deprived of choice. This description had little effect, however, perhaps because it seemed tentative, even cold. The woman, like Blackmun's language, is largely passive. (18) And in the end, the woman disappears completely as Justice Blackmun's argument dissolves all concern for women into medical matters to be decided by a physician. (19)

   The majority opinion in Casey, too, spends only a few sentences describing the effect of restrictions on women who seek abortions. Nevertheless, in these few sentences the focus shifts from medical privacy to individual liberty. Professional medical decisionmaking has disappeared. Instead, the Court powerfully captures the despair at being turned to another's purposes that is at the core of this debate for many women:

   [T]he liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman [sic] with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society. (20) The majority Justices' sensitivity to what Roe...