WASHINGTON – Supreme Court Justices who preserved Roe v. Wade 30 years ago but greatly changed it for the purpose of ending division over abortion, didn’t settle the question any more than Roe did.
Their 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey went out the window with Roe on June 24.
Now, abortion policy rests with states.
In legislative races across the land this fall, the high court’s monumental decision could set the stage for fierce debate, including Illinois House District 112. Either Jennifer Korte or Joe Hackler, Republican pro-life candidates, will take on pro-choice incumbent Democrat Katie Stuart, who will be summoned to Springfield in the coming weeks to take up liberal Gov. JB Pritzker’s drive to make Illinois an abortion destination.
Pritzker said he would call lawmakers back for a special session in order to expand the availability of abortion providers to handle an expected increase in demand, and to boost funding for providers.
And while the abortion debate won't strip away Democrat control of Springfield, some conservative-leaning districts could turn Blue to Red, as in the 112th House District, eroding Illinois' one-party super majority.
The Roe precedent
Roe stood as precedent when Planned Parenthood challenged a Pennsylvania law requiring a wife to tell her husband she would abort their child.
Three features stood out in Roe:
- The constitutional basis rested on a right of privacy.
- States couldn’t prohibit abortion prior to viability, which occurred at three months.
- States could regulate abortion in the next three months and could proscribe it in the last three months.
By the time the Pennsylvania case reached the Supreme Court, Roe had so divided the nation that the Justices decided to improve it.
The high court conceded that the Constitution doesn’t protect privacy and instead classified abortion as liberty under the Fourteenth Amendment.
Justices found at the heart of liberty a right to “define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.”
They discarded Roe’s three stages and instead prohibited any state regulation that imposed an undue burden on a woman’s right to have an abortion.
They didn’t honor Roe on those points but they honored it on viability.
“Stare decisis” was invoked, meaning Supreme Court decisions must stand.
Justices defined viability as the point when independent existence of a second life could reasonably and fairly be an object of state protection.
They set a rule that a law was invalid if it placed a substantial obstacle in the path of a woman seeking abortion before viability. They set a rule that measures designed to ensure that a choice is informed were constitutional so long as they didn’t impose an undue burden. They set a rule that unnecessary regulations presenting a substantial obstacle to a woman seeking abortion imposed an undue burden.
Chief Justice Rehnquist stated that the Court plucked undue burden from nowhere and the standard wasn’t built to last.
Now six Justices knock it down.
Justice Alito wrote that inability to end debate on the issue should not have surprised the Court.
He found the Court couldn’t resolve a rancorous national controversy by dictating a settlement and telling the people to move on.
He found the Casey decision called for resolution of the debate but in doing so it necessarily declared a winning side.
“Those on the losing side, those who sought to advance the state’s interest in fetal life, could no longer seek to persuade their elected representatives to adopt policies consistent with their views,” Alito wrote.
He found historical inquiries essential when parties ask the Court to recognize a new component of liberty.
He quoted a precedent that a fundamental Fourteenth Amendment liberty must be deeply rooted in history and tradition.
He quoted from Lincoln that, “We all declare for liberty but in using the same word we do not all mean the same thing.”
He found the Court must guard against a tendency to confuse what the Amendment protects with its own ardent views.
“That is why the Court has long been reluctant to recognize rights that are not mentioned in the Constitution,” he wrote.
He found license to act on the basis of the mystery of life might correspond to one of many understandings of liberty, but not ordered liberty.
“Ordered liberty sets limits and defines the boundaries between competing interests,” he wrote.
“Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”
As for “stare decisis,” he wrote, “Some of our most important constitutional decisions have overruled prior precedents.”
He found the Justices repudiated the separate but equal doctrine in 1954.
He found that in 1937, they overruled a decision that minimum wages for women violated Fifth Amendment liberty.
He found that in 1943, they overruled a decision that public schools could compel students to salute the flag in violation of sincere beliefs.
“Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people,” he wrote.
He found no party sought the rule of Roe and Casey that states can’t protect fetal life prior to viability.
“Not only did this scheme resemble the work of a legislature, but the Court made little effort to explain how these rules could be deduced from any of the sources on which constitutional decisions are usually based,” he wrote.
He found Casey generated a long list of conflicts in appellate circuits.
He found they disagreed on parental notification, dilation, and evacuation.
He found they disagreed about when an increase in the time needed to reach a clinic constitutes undue burden.
He found they disagreed on whether a state might regulate abortions performed because of race, sex, or disability.
He found the majority’s decision allows women to influence public opinion, lobby legislators, vote, and run for office.
“Women are not without electoral or political power,” he wrote.
“It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”
Concurring Justice Kavanaugh wrote that the analysis in Casey partly rested on a predictive judgment about development of people’s views.
“But that predictive judgment has not borne out,” Kavanaugh wrote.
Chief Justice Roberts and Justices Thomas, Gorsuch, and Barrett also concurred.
Dissenting Justice Breyer wrote, “Casey is a precedent about precedent.”
“It reviewed the same arguments made here in support of overruling Roe, and it found that doing so was not warranted.
“The Court reverses course today for one reason and one reason only, because the composition of this Court has changed.”
Justices Sotomayor and Kagan joined him.