Stop the Tyrants Part I

§I   Fools and Cowards on the Bench: the Casey Decision

It has been said that nothing is ever settled until it is settled right. So, not surprisingly, the Supreme Court's attempt in Roe to settle the controversy over abortion failed miserably. Rather than extinguish the fires of the abortion controversy, Roe just added fuel to the flames.

During 1992, the Supreme Court had to revisit the abortion issue. In a case named Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court -- while as much as admitting that Roe v. Wade was unconstitutional in the first place -- partially overturned and partially upheld the 1973 abortion ruling. In the joint opinion that became the governing case law -- written by Sandra Day O'Connor, Anthony Kennedy, and David Souter -- it was decided that the States have a "substantial interest in potential life," and may "express profound respect for the life of the unborn." Concluding that the courts had previously gone too far in "striking down... some abortion regulations which in no real sense deprived women of the ultimate decision," they ruled that state regulations on abortion that further "legitimate interests" (interests not meant to strike at the abortion right itself) must be allowed. To allow state regulation of abortion while maintaining a legal right to abortion, these three judges invented the following standard:

Only where state regulation imposes an "undue burden" on a woman's ability to make this decision does the power of the State reach into the heart of the [abortion liberty].

Their definition of undue burden was any regulation that has "the effect of placing a substantial obstacle in the path of a woman's choice." This new "undue burden" standard was vague to say the least. The Chief Justice, William Rehnquist, predicted that this standard would do nothing to stop judges from interfering as they pleased with abortion laws. His prediction, as we all know, has come true.

This new decision was just as Court-invented as the Roe decision was. Justices O'Connor, Kennedy, and Souter justified their ruling by saying that in the nearly 20 years (at that time) since Roe v. Wade, American society had become too accustomed to abortion on demand to allow for a complete reversal of the Roe decision's central tenet: that a woman has a constitutional right to terminate an unwanted pregnancy. The majority also suggested that the Supreme Court's prestige could be damaged if it appeared to bow to political pressure by overruling Roe all at once.

Just how do these judges think they can understand the American public better than elected legislators can? Your guess is as good as mine. In any event, since courts are not supposed to intrude on public policy decisions, it is inappropriate for a judge to worry about the social and political consequences of a correct ruling, let alone to place a court's public "prestige" before the law. Of course, in justifying their opinion, O'Connor, Kennedy, and Souter conveniently overlooked the fact that the Texas law that was improperly struck down in Roe had been in effect for more than a century. And this law explicitly stated that a human fetus has a right to live. Twenty years of unconstitutional jurisprudence cannot possibly have the same weight as 116 years of the State of Texas granting legal protection to children in the womb!

The Casey authors' claims of concern for "societal habit" and "court prestige" have a very simple translation: 'We are just too afraid of the militant pro-abortion movement to give Roe the axe!' This expression of fear could, of course, be a perfect cover for a judge's own pro-abortion bias: 'Don't blame me; it's all the fault of those other judges.'

By refusing to completely overrule the unethical and immoral Roe decision, these judges set the stage for the proliferation of the partial-birth abortion/infanticide. Thousands of mostly-born infants have suffered this truly horrible death because of their foolishness and cowardice.

You can read the Court's entire opinion in Casey v. Planned Parenthood on

See the Chapter 1 Table of Contents.

The Stop the Tyrants Project [Page 7]: Chapter 1 (section I)
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