Planned Parenthood v. Casey

United States Supreme Court

505 U.S. 833; 112 S.Ct. 2791; 120 L.Ed. 2d. 674 (1992)

 

            In this case, Planned Parenthood of Southeastern Pennsylvania brought suit against Pennsylvania Governor Robert Casey to challenge the constitutionality of a series of provisions of the Pennsylvania Abortion Control Act of 1982 as amended in 1988 and 1989. The act required a woman seeking an abortion to give her informed consent prior to the abortion procedure, and specified that she be provided with certain information at least twenty-four hours before the abortion is performed. For a minor to obtain an abortion, the Act required the informed consent of one of her parents, but provided for a “judicial bypass” option if the minor did not wish to or could not obtain a parent’s consent.

 

            Another provision of the Act required that, with some exceptions, a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion. The act exempted compliance with these three requirements in the event of a medical emergency. Finally, the act imposed certain reporting requirements on facilities that provide abortion services. After a trial, the federal district court declared all of these provisions unconstitutional. The Court of Appeals for the Third Circuit reversed in part, upholding all of the requirements with the exception of the spousal notification provision.

 

 

Justice O’Connor, Justice Kennedy, and Justice Souter ... delivered the opinion of the Court. ...

 

            ... Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade ... (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. ...

 

            After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed. ...

 

            ... Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the state can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.

 

            It is conventional constitutional doctrine that where reasonable people disagree the Government can adopt one position or the other. ... That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty. Thus, while some people might disagree about whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled, we have ruled that a state may not compel or enforce one view or the other. ...

 

            ... Our cases recognize “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” ... Our precedents “have respected the private realm of family life which the state cannot enter.” ... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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.

 

            These considerations begin our analysis of the woman’s interest in terminating her pregnancy but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. ...

 

            ... [W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proved to be intolerable simply in defying practical workability, ... whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, ... whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, ... or whether facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification. ...

 

            Although Roe has engendered opposition, it has in no sense proven “unworkable,” ... representing as it does a simple limitation beyond which a state law is unenforceable. While Roe has, of course, required judicial assessment of state laws affecting the exercise of the choice guaranteed against government infringement, and although the need for such review will remain as a consequence of today’s decision, the required determinations fall within judicial competence.

 

            ... [F]or 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. ... The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.

 

            No evolution of legal principle has left Roe’s doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking. ...

 

            We have seen how time has overtaken some of Roe’s factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, ... and advances in neonatal care have advanced viability to a point somewhat earlier. ... But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe’s central holding, that viability marks the earliest point at which the state’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.

 

            The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe’s factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.

 

            The sum of the precedential inquiry to this point shows Roe’s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding a doctrinal remnant; Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips. Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe’s central holding, with whatever degree of personal reluctance any of us may have, not for overruling it. ...

 

            The Court’s duty in the present case is clear. In 1973, it confronted the already-divisive issue of governmental power to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment. Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense. A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.

 

            From what we have said so far it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The woman’s liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the state’s interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted. ...

 

            Yet it must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman’s liberty but also the state’s “important and legitimate interest in potential life.” ... That portion of the decision in Roe has been given too little acknowledgement and implementation by the Court in its subsequent cases. Those cases decided that any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a compelling state interest. ... Not all of the cases decided under that formulation can be reconciled with the holding in Roe itself that the state has legitimate interests in the health of the woman and in protecting the potential life within her. In resolving this tension, we choose to rely upon Roe, as against the later cases.

 

            ... Regulations which do no more than create structural mechanisms by which the state, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose. ... Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.

 

            Even when jurists reason from shared premises, some disagreement is inevitable. ... That is to be expected in the application of any legal standard which must accommodate life’s complexity. We do not expect it to be otherwise with respect to the undue burden standard. We give this summary:

 

            (a) ‑To protect the central right recognized by Roe v. Wade while at the same time accommodating the state’s profound interest in potential life, we will employ the undue burden analysis. ... An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

 

            (b) ‑We reject the rigid trimester framework of Roe v. Wade. To promote the state’s profound interest in potential life, throughout pregnancy the state may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. The measures must not be an undue burden on the right.

 

            (c) ‑As with any medical procedure, the state may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle seeking an abortion impose an undue burden on the right.

 

            (d) ‑Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.

 

            (e) ‑We also reaffirm Roe’s holding that “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” ...

 

            The Court of Appeals applied what it believed to be the undue burden standard and upheld each of the provisions [of the Pennsylvania law] except for the husband notification requirement. We agree generally with this conclusion, but refine the undue burden analysis in accordance with the principles articulated above. We now consider the separate statutory sections at issue.

 

            Because it is central to the operation of other requirements, we begin with the statute’s definition of medical emergency. Under the statute, a medical emergency is “[t]hat condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.” ...

 

            ... [T]he Court of Appeals ... stated: “we read the medical emergency exception as intended by the Pennsylvania legislature to assure that compliance with its abortion regulations would not in any way pose a significant threat to the life or health of a woman.” ... Normally, ... we defer to the construction of a state statute given it by the lower federal courts. Indeed, we have said that we will defer to lower court interpretations of state law unless they amount to “plain” error. ... We adhere to that course today, and conclude that, as construed by the Court of Appeals, the medical emergency definition imposes no undue burden on a woman’s abortion right.

 

            We next consider the informed consent requirement. ... Except in a medical emergency, the statute requires that at least 24 hours before performing an abortion a physician inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the “probable gestational age of the unborn child.” ... The physician or a qualified nonphysician must inform the woman of the availability of printed materials published by the State describing the fetus and providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion. An abortion may not be performed unless the woman certifies in writing that she has been informed of the availability of these printed materials and has been provided them if she chooses to view them.

 

            ... Petitioners challenge the statute’s definition of informed consent because it includes the provision of specific information by the doctor and the mandatory 24-hour waiting period. The conclusions reached by a majority of the Justices in the separate opinions filed today and the undue burden standard adopted in this opinion require us to overrule in part some of the Court’s past decisions, decisions driven by the trimester framework’s prohibition of all pre-viability regulations designed to further the State’s interest in fetal life.

 

            The Court then proceeds to overrule portions of Akron v. Akron Center for Reproductive Health (1983), Thornburgh v. American College of Obstetricians and Gynecologists (1986), and Planned Parenthood of Central Missouri v. Danforth (1976).

 

            ... [O]n the record before us, and in the context of this facial challenge, we are not convinced that the 24-hour waiting period constitutes an undue burden.

 

            We are left with the argument that the various aspects of the informed consent required are unconstitutional because they place barriers in the way of abortion on demand. Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand. ... Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State. Because the informed consent requirement facilitates the wise exercise of that right it cannot be classified as an interference with the right Roe protects. The informed consent requirement is not an undue burden on that right.

 

            ... Pennsylvania’s abortion law provides, except in cases of medical emergency, that no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion. The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her. A physician who performs an abortion on a married woman without receiving the appropriate signed statement will have his or her license revoked, and is liable to the husband for damages. ...

 

            ... In well-functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion. ...

 

            The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases. ... It is an undue burden, and therefore invalid.

 

            This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. ... Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women. ...

 

            We next consider the parental consent provision. Except in a medical emergency, an unemancipated young woman under 18 may not obtain an abortion unless she and one of her parents (or guardian) provides informed consent. ... If neither a parent nor a guardian provides consent, a court may authorize the performance of an abortion upon a determination that the young woman is mature and capable of giving informed consent and has in fact given her informed consent, or that an abortion would be in her best interests.

 

            We have been over most of this ground before. Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure. ... Under these precedents, in our view, the one-parent consent requirement and judicial bypass procedure are constitutional. ...

 

            Under the record keeping and reporting requirements of the statute, every facility which performs abortions is required to file a report stating its name and address as well as the name and address of any related entity, such as controlling or subsidiary organization. In the case of state-funded institutions, the information becomes public.

 

            For each abortion performed, a report must be filed identifying: the physician (and the second physician where required); the facility; the referring physician or agency; the woman’s age; the number of prior pregnancies and prior abortions she has had; gestational age; the type of abortion procedure; the date of the abortion; whether there were any pre-existing medical conditions which would complicate pregnancy; medical complications with the abortion; where applicable, the basis for the determination that the abortion was medically necessary; the weight of the aborted fetus; and whether the woman was married, and if so, whether notice was provided or the basis for the failure to give notice. Every abortion facility must also file quarterly reports showing the number of abortions performed broken down by trimester. ... In all events, the identity of each woman who has had an abortion remains confidential.

 

            In [Planned Parenthood v.] Danforth, ... we held that record keeping and reporting provisions “that are reasonably directed to the preservation of maternal health and that properly respect a patient’s confidentiality and privacy are permissible.” We think that under this standard all the provisions at issue here except that relating to spousal notice are constitutional. Although they do not relate to the State’s interest in informing the woman’s choice, they do relate to health. The collection of information with respect to actual patients is a vital element of medical research, and so it cannot be said that the requirements serve no purpose other than to make abortions more difficult. Nor do we find that the requirements impose a substantial obstacle to a woman’s choice. At most they might increase the cost of some abortions by a slight amount. While at some point increased cost could become a substantial obstacle, there is no such showing on the record before us.

 

            Subsection (12) of the reporting provision requires the reporting of, among other things, a married woman’s “reason for failure to provide notice” to her husband. ... This provision in effect requires women, as a condition of obtaining an abortion, to provide the Commonwealth with the precise information we have already recognized that many women have pressing reasons not to reveal. Like the spousal notice requirement itself, this provision places an undue burden on a woman’s choice, and must be invalidated for that reason. ...

 

 

Justice Stevens, concurring in part and dissenting in part.

 

            ... The Court is unquestionably correct in concluding that the doctrine of stare decisis has controlling significance in a case of this kind, notwithstanding an individual justice’s concerns about the merits. The central holding of Roe v. Wade, ... has been a “part of our law” for almost two decades. It was a natural sequel to the protection of individual liberty established in Griswold v. Connecticut. ... The societal costs of overruling Roe at this late date would be enormous. Roe is an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women. ...

 

            In my opinion, the principles established in [the] long line of cases [since Roe v. Wade] ... should govern our decision today. Under these principles, [the informed consent provisions] of the Pennsylvania statute are unconstitutional. Those sections require a physician or counselor to provide the woman with a range of materials clearly designed to persuade her to choose not to undergo the abortion. ...

 

            The 24-hour waiting period raises even more serious concerns. ... Part of the constitutional liberty to choose is the equal dignity to which each of us is entitled. A woman who decides to terminate her pregnancy is entitled to the same respect as a woman who decides to carry the fetus to term. The mandatory waiting period denies women that equal respect. ...

 

 

Justice Blackmun, concurring in part and dissenting in part.

 

            Three years ago, in Webster v. Reproductive Health Services, ... four members of this Court appeared poised to “cas(t) into darkness the hopes and visions of every woman in this country” who had come to believe that the Constitution guaranteed her the right to reproductive choice. ... All that remained between the promise of Roe and the darkness of the plurality was a single, flickering flame. Decisions since Webster gave little reason to hope that this flame would cast much light. But now, just when so many expected the darkness to fall, the flame has grown bright.

 

            I do not underestimate the significance of today’s joint opinion. Yet I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by the Court before Webster. And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light. ...

 

            Make no mistake, the joint opinion of Justices O’Connor, Kennedy, and Souter is an act of personal courage and constitutional principle. In contrast to previous decisions in which Justices O’Connor and Kennedy postponed reconsideration of Roe v. Wade, ... the authors of the joint opinion today join Justice Stevens and me in concluding that “the essential holding of Roe should be retained and once again reaffirmed.” ... In brief, five members of this Court today recognize that “the Constitution protects a woman’s right to terminate her pregnancy in its early stages.” ...

 

            A fervent view of individual liberty and the force of stare decisis have led the Court to this conclusion. ...

 

            In one sense, the Court’s approach is worlds apart from that of the Chief Justice and Justice Scalia. And yet, in another sense, the distance between the two approaches is short—the distance is but a single vote. I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.

 

 

Chief Justice Rehnquist, with whom Justice White, Justice Scalia, and Justice Thomas join, concurring in part and dissenting in part.

 

            The joint opinion, following its newly-minted variation on stare decisis, retains the outer shell of Roe v. Wade, but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster v. Reproductive Health Services ... and uphold the challenged provisions of the Pennsylvania statute in their entirety. ...

 

            The joint opinion of Justices O’Connor, Kennedy, and Souter cannot bring itself to say that Roe was correct as an original matter, but the authors are of the view that “the immediate question is not the soundness of Roe’s resolution of the issue, but the precedential force that must be accorded to its holding.” ...

 

            Instead of claiming that Roe was correct as a matter of original constitutional interpretation, the opinion therefore contains an elaborate discussion of stare decisis. ...

 

            In our view, authentic principles of stare decisis do not require that any portion of the reasoning in Roe be kept intact. “Stare decisis is not ... a universal, inexorable command,” ... especially in cases involving the interpretation of the Federal Constitution. Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislation action, save for constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional interpretations that “depart(t) from a proper understanding” of the Constitution. ...

 

            The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution. The doctrine of stare decisis is an adjunct of this duty, and should be no more subject to the vagaries of public opinion than is the basic judicial task. ...

 

            The decision in Roe has engendered large demonstrations, including repeated marches on this Court and on Congress, both in opposition to and in support of that opinion. A decision either way on Roe can therefore be perceived as favoring one group or the other. But this perceived dilemma arises only if one assumes, as the joint opinion does, that the Court should make its decisions with a view toward speculative public perceptions. ...

 

            The sum of the joint opinion’s labors in the name of stare decisis and “legitimacy” is this: 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. But behind the facade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion. Neither stare decisis nor “legitimacy” are truly served by such an effort. ...

 

 

Justice Scalia, with whom the Chief Justice, Justice White, and Justice Thomas join, concurring in part and dissenting in part.

 

            My views on this matter are unchanged. ... The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so.

 

            The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. As the Court acknowledges, “where reasonable people disagree the government can adopt one position or the other.” ...

 

            The Court is correct in adding the qualification that this “assumes a state of affairs in which the choice does not intrude upon a protected liberty,” ... but the crucial part of that qualification is the penultimate word. A State’s choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a “liberty” in the absolute sense.

 

            Laws against bigamy, for example—which entire societies of reasonable people disagree with—intrude upon men and women’s liberty to marry and live with one another. But bigamy happens not to be a liberty specially “protected” by the Constitution.

 

            That is, quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not.

 

            I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of life.” ... Rather, I reach it for the same reason that bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed. ...

 

            The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve.

 

            National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.

 

            Roe’s mandate for abortion-on-demand destroyed the compromises of the past, rendered compromises impossible for the future, and required the entire issue to be resolved, uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act (“If the Constitution guarantees abortion, how can it be bad?”—not an accurate line of thought, but a natural one).

 

            Many favor all of those developments, and it is not for me to say that they are wrong. But to portray Roe as the statesmanlike “settlement” of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. ...